C-72/74

1. Natural or legal persons to whom 2. An organization formed for the Article 173 refers and to whom the protection of the collective interests disputed measure is not addressed of a category of persons cannot be may only claim that the measure is of considered as being directly and individual concern to them if it affects individually concerned by a measure them by reason of certain attributes affecting the general interests of that which are peculiar to them, or by category. reason of circumstances in which they The mere participation of such an are differentiated from all other organization in the discussions which persons, and by virtue of these factors preceded the disputed measure is not distinguishes them individually just as sufficient to change the nature of the in the case of the person addressed. right of action which, in the context of Article 173, it may possess in relation to that measure.

In Case 72/74

UNION SYNDICALE — SERVICE PUBLIC EUROPÉEN, Brussels, FEDERATION DE LA FONCTION PUBLIQUE EUROPÉENNE, Brussels, SYNDICAT DES FONCTIONNAIRES INTERNATIONAUX ET EUROPÉENS, Brussels, SYNDICAT GÉNÉRAL DU PERSONNEL DES ORGANISMES EUROPÉENS, Luxembourg, UNION SYNDICALE EURATOM, Karls­ ruhe, UNION SYNDICALE EURATOM, Ispra, UNION SYNDICALE EURATOM, Petten, and SYNDICAT GÉNÉRAL DU PERSONNEL DES ORGANISMES EUROPÉENS, European

1 — Language of the Case: French.

JUDGMENT OF 18. 3. 1975 — CASE 72/74

Parliament, Luxembourg, all assisted and represented by Marcel Gregoire, Advocate at the cour d'appel, Brussels, of 68, rue Camille Lemonnier, 1060 Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, Advocate at the Court, 83, boulevard Grande-Duchesse Charlotte,

composed of: R. Lecourt, President, J. Mertens de Wilmars (Rapporteur) and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges,

Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

UNION SYNDICALE v COUNCIL

JUDGMENT

Facts

These two Community indices are fixed on the basis of the weighted average of I — Facts and procedure the data supplied by the corresponding national indices. In this weighting, the According to Article 65 (1) of the Staff Italian figures amount, it seems, to 28% Regulations, the Council shall each year, (for the Community of the Six). in the light of a report by the Commission, review the remunerations When this system was applied it became of the officials and other servants of the apparent that the Community specific Communities and during this review index, which showed an average increase shall consider whether, as part of the of 3·6% in the purchasing power of national salaries during 1971/1972, economic and social policy of the Communities, remuneration should be showed an increase of 7·3% during 1972/1973. When the cause of this adjusted. disparity was sought, it appeared that At the time of this annual review, the Italian specific index had made a account is taken not only of the increase considerable leap from one period to the in the cost of living but also of the next, which had had repercussions on average increase in purchasing power in the Community specific index. The the Community, in such a way as to reason lay in the fact that for the first ensure for officials not only the period the Italian specific index only maintenance of their purchasing power took into account basic salaries and but also an increase, in real terms, in certain permanent allowances, whereas their salaries, justified by and parallel to for the following period, after a change the rise in the general standard of living in the financial regulations in the Italian in the Community. public service, a whole series of For the purpose of eliminating the additional advantages previously not differences of view caused by this taken into account were incorporated in review, the Council on 20 and 21 March the salaries. 1972 adopted a resolution by which it According to the Commission and the undertook, for a trial period of three applicant trade unions, these facts years from 1 July 1972 to 30 June 1975, to fix the level of increase in Community showed that the Community specific index was fixed on an incorrect basis for remuneration within a bracket formed the reference periods 1971/1972 and by two indices of the growth of remuneration in the public service in the 1972/1973, which determined the Member States: salaries for the periods 1972/1973 and 1973/1974. — a so-called 'specific' index reflecting, in respect of a given sample of The Commission and the applicants officials, the growth of the average endeavoured to get the Council to nominal salary as compared to the correct what they considered to be an increase in the cost of living; and error affecting the calculation of salaries.

The Council refused to agree with them, it concerns the recognition of the maintaining essentially that it was not a right to reparation of the loss suffered question of an error of calculation but of by the European officials and other normal consequences of the amendment servants and the determination of the of the legislation of a Member State. the principle that compensation must It is this refusal, expressed in a meeting be granted; of the Council on 22 and 23 July 1974, 3. order that the main action be heard. which forms the subject-matter of this application for the annulment of that decision rejecting any proposal for the readjustment of the salaries of European III — Submissions and argu­ officials, following the defectiveness of ments of the parties the specific index of one of the Member on the preliminary States, and recognition of the right to objection of reparation for the loss suffered thereby. inadmissibility The application, which was dated 20 September 1974, was lodged at the 1. In the Council's view the application Court Registry on 23 September 1974. is inadmissible whatever its legal basis. By a statement of 17 October 1974 the A direct action under Article 91 of the Council raised a preliminary objection of Staff Regulations of Officials is open inadmissibility and requested the Court only to officials and servants (two of Justice to rule on this point, under judgments of 8 October 1974: Case Article 91 of the Rules of Procedure. The 175/73, Union syndicale — Service applicants contend that the preliminary public européen and Others v Council of objection should be dismissed. the European Communities, and Case The Court decided to give a ruling on 18/74, Syndicat général du personnel des the preliminary objection. organismes européens v Commission of the European Communities, not yet On hearing the report of the reported), whilst a direct action under Judge-Rapporteur and the opinion of the Article 173 of the Treaty is inadmissible Advocate-General, the Court also both by reason of the nature of the decided that no preparatory inquiries measure criticized and because the were necessary. measure is not of individual concern' to the applicants. The second paragraph of Article 173 of II — Conclusions of the the EEC Treaty only authorizes private parties on the prelimi­ parties to make applications for annulment to the Court if nary objection 1. the application is directed against The Council claims that the Court 'decisions' addressed to the appli­ should declare the applicants' appli­ cants, or cation to be inadmissible and order them to pay the costs. 2. measures in the form of a regulation or a decision addressed to another The applicants contend that the Court should: person are 'of direct and individual concern' to the applicants. 1. dismiss the preliminary objection of inadmissibility; The application is in the first place inadmissible because the measure 2. declare the application to be criticized must be interpreted as an admissible or, alternatively, at least implied rejection by the Council of the declare it to be admissible in so far as proposal by the Commission on 21

March 1974 for a regulation for the Others v Commission of the European retroactive readjustment of remuneration Communities, Rec. 1971, p. 411. Case as from 1 July 1972. It is therefore a 62/70, Werner A. Bock v Commission of measure of general scope ‘applicable not the European Communities, Rec. 1971, to a limited number of persons, defined p. 897). or identifiable, but to categories of The defendant also draws attention to persons viewed abstractly and in their the above-cited judgment of 14 entirety', according to the judgment of December 1962 which stated that one the Court of 14 December 1962 in cannot accept the principle that an Joined Cases 16 und 17/62, association, in its capacity as the Confederation nationale des producteurs representative of a category of de fruits et legumes and others and businessmen, could be individually federation nationale des producteurs de concerned by a measure affecting the raisins de table v Council of the EEC general interests of that category'. [1962] ECR 478. 2. In reply to the preliminary objection The application is also inadmissible because the applicants do not satisfy the of inadmissibility, the applicants state first of all that their application is based, conditions for the second possibility of on the one hand, on Article 173 of the bringing proceedings as the measure criticized is neither of 'direct' nor of Treaty in so far as it concerns the 'individual' concern to them. It is not of annulment of the measure criticized and, on the other hand, on Articles 178 and 'direct' concern to them because, as 215 of the Treaty in so far as it concerns appears from the Advocate-General's the recognition of the right to reparation opinion preceding the judgment of 8 and the determination of the principle October 1974 in Case 18/74 (Syndicat that compensation must be granted. general), the concept of direct interest can only cover the personal interests of A — With regard to the preliminary the applicants and not those of objection of inadmissibility raised in the applicants who make themselves the context of Article 173 of the Treaty, they defenders of such rights. The measure maintain the following: criticized is not of individual' concern to them because it does not affect them 'by reason of certain attributes which are 1. As to the nature of the measure criticized peculiar to them, or by reason of circumstances in which they are The measure criticized can in no way differentiated from all other persons, and have general application' within the by virtue of these factors distinguishes meaning of the second paragraph of them individually just as in the case of Article 189 of the Treaty. It is not a the person addressed' (Judgment of 15 question of a regulation, but of a group July 1963 in Case 25/62, Plaumann & of individual decisions of refusal to Co. v Commission of the EEC [1963] make reparation for the loss suffered by ECR 107). the officials and other servants of the

have the form which would have been satisfying, in respect of a trade union, taken by the contrary measure. the condition of a direct and individual Moreover, what it rejects is the very interest, since protection of the collective principle of compensation. interest is precisely the reason for such an organization's existence. The Even if one disregards the form, it is still Council's argument results, in fact, in not a question of a regulation, that is to denying trade unions the right of action say, of a measure applicable 'to in the collective interest, in disregard of categories of persons viewed abstractly the judgment of 8 October 1974. and in their entirety', as the persons to whom the measure was addressed are at There is in this case no doubt as to the existence of a collective interest with least identifiable, since they are the officials and servants who have received regard to the officials and servants who insufficiently adjusted remuneration and are members of the applicant

It is inconceivable that officials and servants Commission of the European Communi cannot bring an action against a ties and European Parliament [1974] disputed measure which affects their ECR 198), to apply to the Community legal system, 'by means of an act legal position by refusing to indemnify them for the loss which they have showing considerable awareness of the suffered. law as a living organism', the changes in ideas and customs, particularly as seen through the law of the Member States.

UNION SYNDICALE v COUNCIL

Law

1 The application made on 20 September 1974 seeks, first, the annulment of the decision of the Council of 22 and 23 July 1974 'in so far as it rejects any proposal for the compensation of European officials as a result of the defectiveness of the specific index for one Member State' and, secondly, a ruling by the Court 'that reparation should be made for the loss suffered by

JUDGMENT OF 18. 3. 1975 — CASE 72/74

the European officials by reason of the errors vitiating the decisions of the defendant prior to Regulation No 2/74 and relating to the adjustment of salaries in terms of the increase in purchasing power'.

2 The applicants subsequently stated that the application was based on Article 173 of the EEC Treaty in respect of the first head of claim and on Articles 178 and 215 in respect of the second.

3 As the defendant Council has raised a preliminary objection of inadmissibility, it is appropriate, in application of Article 91 of the Rules of Procedure, to rule on this point before hearing the main case.

9 To this end, on 14 February 1974 the Commission submitted to the Council a proposal for a regulation comprising, for the period from 1 July 1972 to 30 June 1973, a table of monthly salaries amending that appearing in Regulation No 2188/73 of the Council of 9 August 1973.

10 After various discussions with the Commission and the trade unions representing the staff, the Council considered that the index criticized did not show the alleged defects and decided by the resolution in dispute to hold to 'its decision of 18 December 1973'.

11 The Commission and the applicants in turn made applications against that decision.

A — The admissibility of the application in so far as it is based on Article 173 of the Treaty

12 Under the terms of the second paragraph of Article 173 of the Treaty, any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

13 It must therefore be examined whether the measure criticized, whatever its nature, is of direct and individual concern to the applicants.

19 Furthermore, the mere fact that those organizations took part in the discussions which preceded the disputed measure is not sufficient to change the nature of the right of action which, in the context of Article 173, they may possess in relation to that measure.

B — The admissibility of the application in so far as it is based on Articles 178 and 215 of the

Treaty

20 In so far as it is restricted to asking the Court to 'rule' that officials and servants are entitled to reparation for the loss suffered by them by reason of the 'errors vitiating the previous decisions of the Council', the application is

UNION SYNDICALE v COUNCIL

concerned with one of the consequences which the Council would have to draw from a judgment of annulment and is therefore indistinguishable from the application for annulment.

THE COURT

hereby:

1. Dismisses the application as inadmissible;

2. Orders the applicants to pay the costs.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O'Keeffe