C-108/83

JUDGMENT OF THE COURT 10 A P R I L 1984 1

Grand Duchy of Luxembourg ν European Parliament

(Place of w o r k of t h e Parliament — Staff assigned thereto)

Case 108/83

1. Action for a declaration that a measure is void — Measures in respect of which such an action may be brought — Resolution of the Parliament — Requirement that it be of a decision-making character (ECSC Treaty, Art. 38)

2. Parliament — Internal organization — Power to determine the location of its departments — Limits (Decision of the Member States of 8 April 1965, Art. 4; Resolution of the Par­ liament of 20 May 1983)

EUROPEAN PARLIAMENT, represented by its Director General, Francesco Pasetti-Bombardella, and its Legal Adviser, Roland Bieber, acting as Agents, with an address for service in Luxembourg at the office of the Secretary General of the European Parliament, Kirchberg, defendant,

APPLICATION for a declaration that the resolution of the European Par- liament dated 20 May 1983 on the consequences to be drawn from the European Parliament's adoption, on 7 July 1981, of the Žagari Report (Official Journal, C 151, p. 155) is void,

THE COURT

composed of: J. Mertens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, O. Due, U. Everling and C. Kakouris, judges,

Advocate General : G. F. Mancini Registrar: P. Heim

gives the following

A. having regard to its experience in (c) To taken account in future of this the course of nearly three years as division of staff when recruiting regards its places of work, new staff;

B. having regard to the decisions taken (d) To take account of the legitimate on 7 July 1981 on the basis of the interests of staff by applying as Zagari Report, broadly as possible the principle of voluntary transfer and by fully C. whereas it is entitled to take, as involving staff representatives in regards the organization of its work, working out the measures to be all necessary decisions that do not taken in implementation of this require the participation or approval resolution; of the Council,

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signed by more than half the Members by Mr von Hassel on the consequences of Parliament. to be drawn from the European Par- liament's adoption, on 7 July 1981, of Since, however, this motion for a the Zagari Report (Document 1-15/83), resolution has been tabled with all the which had been signed by 238 Members signatures, it has not been possible to as at 9 March 1983, had been forwarded apply the procedure laid down in to the Members of the Bureau and the paragraphs (2) and (3) of Rule 49, parti- Secretary General on the understanding cularly as regards Members' rights to that this could in no way prejudice the table amendments. outcome of the deliberations of the Committee on the Rules of Procedure I feel that under these circumstances the and Petitions" (Official Journal C 161, motion for a resolution should be posted p. 154). on the notice boards for at least 30 days, and possibly, subsequently forwarded to The motion for a resolution had been the relevant parliamentary bodies who forwarded in accordance with Para- would consider the action to be taken on graphs (2) and (3) of the Resolution and this text with specific reference to the pursuant to Rule 49 (5) of the Rules of judgment of the Court of Justice of the Procedure of the European Parliament. European Communities in Case 230/81 between the Government of the Grand Duchy of Luxembourg and the European 6. On 2 June 1983 the reply to the Parliament and to the provisions of President's request was forwarded to the the Staff Regulations" (Official Journal President by the Committee on the Rules C 96, p. 45). of Procedure and Petitions, pursuant to Rule 111 (3) of the Rules of Procedure. The resolution was accordingly posted The opinion (Document PE 84.980) on the notice boards. As a result, one interpreted Rule 49 (3) of the Rules of signature was withdrawn and four others Procedure as meaning that the motion were added. for a resolution was not admissible.

the Staff Regulations" (Official Journal, Take note that the applicant is content to C 307, 14. 11. 1983, p. 3). defer to the judgment of the Court as regards the legality of the contested resolution; 8. The opinion of the Committee on the Rules of Procedure and Petitions Declare null and void for lack of was forwarded to the Bureau and the competence the resolution of the Secretary General and it seems that European Parliament on the con- neither has yet taken any measures on sequences to be drawn from the adoption the basis of the resolution. by the European Parliament, on 7 July 1981, of the Žagari Report, which was the subject of a statement by the President of the sitting of the European II — W r i t t e n p r o c e d u r e Parliament on 20 May 1983, according to which that resolution was sent to the 1. By an application lodged on 10 June Members of the Bureau and to the 1983, the Grand Duchy of Luxembourg Secretary General; instituted proceedings against the resolution in question, relying principally Take formal note that the applicant upon Articles 31 and 38 of the ECSC reserves all other rights and actions. Treaty and, in the alternative, and in so far as necessary, upon Article 173 of the 2. The Europea» Parliament contends EEC Treaty and Article 146 of the that the Court should: EAEC Treaty. Dismiss the application; 2. The written procedure followed the Order the applicant to pay the costs. normal course.

Upon hearing the report of the Judge- Rapporteur and the views of the IV — S u b m i s s i o n s and a r g u m e n t s Advocate General, the Court decided to of the p a r t i e s open the oral procedure without any preparatory inquiry. The Court did A — The definitive character of the however invite the Parliament to reply in resolution writing to a question before the hearing. In its defence, the Parliament raises objections concerning the definitive I I I — C o n c l u s i o n s of the p a r t i e s character of the resolution, in view of the fact that the question of the applicability of Rule 49 was referred 1. The Grand Duchy of Luxembourg to the Committee on the Rules of claims that the Court should: Procedure and Petitions.

Β — The decision-making character of (Point 1) uses the verb "decide" — to the resolution proceed (Point 1 (b)) to "divide up staff of the secretariat . . . between the places of work", that is to say "the place where Parliament holds its sessions, namely The Parliament contends that the re­ Strasbourg", and, for "services that are solution does not have any binding effect mainly concerned with the functioning of and that it is not directly applicable. It is the committees", Brussels. only a non-binding statement of the position of the Assembly on the organi­ zation of its General Secretariat, a It could not be more clearly stated or question which lies within the decided in more direct terms that the competence of the Bureau, under Rules staff of the secretariat were to be divided 22 and 113 (2) of the Rules of up between two places of work only, Procedure. Since the contested resolution namely Strasbourg and Brussels. Even does not involve a modification of the without the statement that Luxembourg powers of the Bureau (such a was dedicated solely to remaining the modification could be made only in seat of the judicial and financial accordance with the procedure laid institutions, there could not have been a down in Rule 112), the resolution cannot more deliberate and open infringement be regarded as having, of itself, legal of Article 4 of the Decision of 8 April effects. It is thus a simple invitation to 1965, which states that "the general act, as was the resolution of 7 July 1981 secretariat of the Assembly and its regarding the organization of the departments shall remain in Luxem- General Secretariat, which was the bourg". The flagrant incompatibility of subject of the Court's judgment of these two "decisions", that of the 10 February 1983 in Case 230/81 (Grand governments of the Member States in Duchy of Luxembourg ν European Par­ 1965 and that of the Parliament which is liament, [1983] ECR 255). Consequently, at issue here, is of itself enough to that decision of the Court also applies to demonstrate that they are both of an the present case. identical decision-making character.

than the implementation of the decision lations between the internal organs of which had been taken? There is no need Parliament, and this would both under- for the applicant to take a position on mine the autonomy of an institution of the question whether or not the the European Community and constitute competence of the Bureau is "specific", an infringement of the obligations set out as is contended in the defence, or on in Article 5 of the EEC Treaty. the legal significance of such specific competence; it should be noted that both the Bureau and the enlarged Bureau are The Parliament concludes that the to carry out, among other duties resolution can have no legal effect on the assigned to them (Rule 22 (1) and Rule assignment of officials of the General 24 (1)), those relating to the Parliament's Secretariat of the Parliament. internal organization (Rule 22 (2) and Rule 24 (2)). In fact, since the adoption of the resolution, the Bureau has not taken any decision concerning the assignment of It cannot therefore seriously be disputed officials on the basis thereof. The that the resolution is in the nature of a resolution is under consideration by the decision. Bureau, which will examine in the first place, as the President announced at the 4. In its rejoinder, the Parliament sitting of 10 October 1983, whether or emphasizes that the resolution is not it is compatible with the judgment of concerned only with general measures the Court of Justice of 10 February 1983 regarding the organization of the in Case 230/81. General Secretariat and that decisions of this kind are solely within the powers of the Bureau of the Parliament. C — Substance

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It judgment, respect the power of the can be seen moreover from the preamble governments of the Member States to to the resolution that, in the view of the determine the seat of the institutions and Parliament, the expression "places of respect the decisions taken provisionally work" means Strasbourg and Brussels; in the meantime. Luxembourg is therefore clearly ex- cluded, being "dedicated to remaining the seat of the judicial and financial institutions". It is also clear from Point 1 By a decision of 8 April 1965 on the (b) of the decision that the division provisional location of certain in- affects the whole of the Secretariat, stitutions and departments of the because it is based on whether the Communities, and in particular by Article services are "mainly concerned with the 4 of that decision, the governments of functioning of part-sessions" or with the Member States decided that "the "the functioning of the committees". General Secretariat of the Assembly and

Article 37 of the Treaty establishing a single Council and a single Commission of the European Communities. 2. The Parliament contends that it has, independently of the powers of the governments of the Member States, the The Luxembourg Government accepts power, as the Court confirmed in the that in the same judgment the Court same judgment, " to discuss any question decided that the Parliament, in the concerning the Communities, to adopt absence of a seat or even a single place resolutions on such questions . . ." of work, must be in a position to maintain, in the various places of work outside the place where its secretariat is Consequently, the mere fact that it established, the infrastructure essential adopts a resolution on a matter which for ensuring that it can fulfil in all those may interest the Member states cannot places the tasks which are entrusted to it constitute an infringement of the powers by the Treaties. of the Member States.

Decision

1 By an application lodged at the C o u r t Registry on 10 J u n e 1983, the Grand D u c h y of L u x e m b o u r g brought proceedings pursuant to Articles 31 and 38 o f th e E C S C T r e a t y and, in the alternative, pursuant to Article 173 of the E E C T r e a t y and Article 146 of the E A E C Treaty seeking a declaration that the resolution on the consequences to be drawn from the European Par- liament's adoption, on 7 July 1981, of the Zagari Report, published in the minutes of the sitting of the European Parliament on 20 M a y 1983 (Official Journal 1983, C 161, 20. 6. 1983, p. 155), is void.

2 It should be recalled that the resolution of the Parliament of 7 July 1981, adopting the Zagari Report, was the subject of an application for a

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declaration of nullity brought by the Grand Duchy of Luxembourg, which led to the judgment of the Court of 10 February 1983 (Case 230/81 Luxem­ bourg ν Parliament [1983] ECR 255).

3 According to the resolution at issue, the Parliament, considering that "it is entitled to take, as regards the organization of its work, all necessary decisions that do not require the participation or approval of the Council", that, "in implementation of the decisions of 7 July 1981, all part-sessions are held in Strasbourg, an official place of work of the European Parliament", that "the meetings of the committees and political groups are normally held in Brussels" and that "Luxembourg is dedicated to remaining the seat of the judicial and financial institutions",

5 As can be seen from the minutes of the sitting on 10 March 1983 (Official Journal C 96, 11. 4. 1983, p. 45), the President of the Parliament informed the i lenary Assembly that the motion for the resolution at issue "had been signed by more than half the Members of Parliament". He also stated that, since . .. this motion for a resolution had been tabled with all the signatures, it had not been possible to apply the procedure laid down in paragraphs 2 and 3 of Rule 49, particularly as regards Members' rights to table amendments". The President considered that "under these circum- stances the motion for a resolution should be posted on the notice boards for at least 30 days, and possibly, subsequently forwarded to the relevant par- liamentary bodies who would consider the action to be taken on this text with specific reference to the judgment of the Court of Justice of the European Communities in Case 230/81 between the Government of the Grand Duchy of Luxembourg and the European Parliament and to the provisions of the Staff Regulations".

6 The President of the Parliament, in a letter of 21 March 1983, requested the Committee on the Rules of Procedure and Petitions to give an opinion on whether Rule 49 was applicable to matters relating to the internal organiz- ation of the European Parliament and, if so, how this affected the mandate given to the Bureau by the Resolution of 7 July 1981 (Working Document of the Committee, PE 84.980, of 18. 5. 1983).

7 By a letter of 23 March 1983, a second question was submitted to the Committee concerning the possibiliy of amendments and the deadline for tabling them (same document, No PE 84.980).

12 On the following day, 10 June 1983, the Grand Duchy of Luxembourg instituted the present proceedings for a declaration that the resolution in question was void.

1 3 At the sitting on 10 October 1983, the President informed Parliament that the Chairman of the Committee on the Rules of Procedure and Petitions had forwarded an opinion, in which it was stated that, "following Parliament s rejection on 9 June 1983 of an interpretation proposed by the Committee the Committee considered that an amendment to Rule 49 of the Rules of Procedure should be submitted to Parliament in the near future. . . . At all events, such an amendment to Rule 49 would not be retroactive . The

LUXEMBOURG / PARLIAMENT

P es de r i n t therefore considered "that the reservations concernine the admissibility of the resolution no longer held". With regard to "the substance and content of the resolution", he reminded Parliament "of the statement which he had made at the sitting of 10 March 1983, according to which 'the relevant parliamentary bodies would consider the action to be taken on this text with specific reference to the judgment of the Court of Justice of the European Communities in Case 230/81 between the Government of the Grand Duchy of Luxembourg and the European Parliament and to the provisions of the Staff Regulations' " (Official Journal C 307 14 11 1983 p. 3).

1 4 In its report of 28 October 1983 (Working Document No 1-975 of 9 No- vember 1983, PE 86.280/fin.) the Committee on the Rules of Procedure and 1 entions stated, as regards its interpretation of Rule 49, that "at the plenary sitting of 9 June 1983, the European Parliament rejected this interpretation" and it proposed an amendment to the said rule.

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organs, in this case the Bureau and the Secretary General of Parliament, the only purpose of which is to make proposals and, if necessary, to give a political orientation to any decisions which those organs may take; the resolution is not intended to determine the content of those decisions. It is thus an administrative measure relating to the internal organization of Par- liament, and does not of itself produce legal effects; it is therefore of the same nature as the resolution which was the subject of the application in Case 230/81.

20 The Luxembourg Government contends that the fact that the resolution is in the nature of a decision is demonstrated both its wording and its content, inasmuch as it contains specific provisions dealing in particular with the division of staff and providing for precise implementing measures.

21 It should be pointed out, without attaching excessive importance to the use of the verb "decide" in the text of the resolution, that it is clear from its very terms that the resolution provides for specific measures, consisting in the permanent division of the services and staff of the Secretariat between Strasbourg and Brussels.

22 Whilst it is true that the Parliament, in Points 2 and 3 of the resolution at issue, instructs the Bureau and the Secretary General to institute structural changes and prepare re-organization measures, it does so because it has decided upon the changes and the re-organization and requires that the division decided upon should be followed by implementing measures.

27 The Parliament emphasizes furthermore that the content of the resolution at issue must be evaluated in the light of the statements made by its President on 10 March and 10 October 1983, according to which the Bureau and the General Secretariat were to consider the action to be taken with regard to that resolution with specific reference to the judgment of the Court in the abovementioned case and to the provisions of the Staff Regulations: it maintains that in the light of those statements, which the Parliament has adopted, it is clear that the resolution at issue is not intended to modify the existing situation in a way which is contrary to the judgment of the Court

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28 It should be pointed out in the first place that, whilst it is true that the resolution in dispute was, after its adoption, to be forwarded to the Bureau and that the President of the Parliament had stated that the competent organs of the Parliament "would consider the action to be taken on this text with specific reference to the judgment of the Court of Justice of the European Communities in Case 230/81", the fact remains that the Par- liament, by adopting the resolution, on the one hand, asserted its authority to take the measures at issue and, on the other, intended to give effect to its wish to divide up its services and its staff between places other than Luxem- bourg. In those circumstances, the compatibility of the resolution with the decision of the Member States of 8 April 1965 must be judged on its own merits.

29 In the second place, it should be borne in mind that Article 4 of the Decision of 8 April 1965 on the provisional location of certain institutions and departments of the Communities (Journal Officiel N o 152, 13. 7. 1967, p. 18) provides that "the General Secretariat of the Assembly and its departments shall remain in Luxembourg". It must also be emphasized that the Court, in the judgment cited above, stated that the Parliament "must be in a position to maintain in the various places of work outside the place where its Secretariat is established the infrastructure essential for ensuring that it may fulfil in all those places the tasks which are entrusted to it by the Treaties".

34 Since the Parliament has been unsuccessful in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that the resolution of the European Parliament on the consequences to be drawn from the European Parliament's adoption, on 7 July 1981, of the Žagari Report (Official Journal C 161, 20. 6. 1983, p. 155) is void;

2. Orders the European Parliament to pay the costs.