C-297/86

Mr President, twice as many candidates as there are seats Members of the Court, allotted to its nationals (Article 195 of the EEC Treaty, Article 167 óf the EAEC Treaty). That means that in the case of the Italian Republic, which holds 24 seats A — Facts (Article 194 of the EEC Treaty and Article 166 of the EAEC Treaty), the list must contain the names of 48 candidates. Since 1. The case in which I am delivering my according to Article 19 of the Rules of opinion today concerns the composition of Procedure of the Economic and Social the Economic and Social Committee as it Committee 2 three groups may be was fixed for the period from September constituted within the Committee (repre­ 1986 to September 1990 by the decision senting employers, workers and other adopted by the Council, after consulting the categories of economic and social activity Commission, on 15 September 1986. 1 respectively), the same division is followed in drawing up the national lists. The Italian list was thus composed of three groups each containing eight principal candidates and 2. The Economic and Social Committee, the same number of alternative candidates. which is provided for both in the EEC Treaty and in the EAEC Treaty (according to Article 5 of the Convention on certain institutions common to the European Communities, there is a single Economic 3. The applicants in these proceedings, the and Social Committee), consists of 'repre­ Confederazione italiana dirigenti di azienda sentatives of the various categories of (CIDA) (Italian Confederation of Company economic and social activity, in particular, Directors and Managers), which (the Court representatives of producers, farmers, was told) is the sole representative of the carriers, workers, dealers, craftsmen, interests of senior managers in Italy, Fausto professional occupations and representatives d'Elia, President of CIDA and current of the general public' (Article 193 of the president of the confédération internationale EEC Treaty, which according to Article 5 des cadres (International Federation of of the Convention on certain institutions Executive Staffs), which is an association of common to the European Communities is all the national federations of business the sole provision applicable). Article 195 of managers in Europe, and Pierluigi the EEC Treaty (like Article 167 of the Marchesi, Vice-President of CIDA, EAEC Treaty) provides that the compo­ complain that the Italian proposal put sition of the Committee is to take account forward the names of two business of the need 'to ensure adequate represen­ managers only among the alternative tation of the various categories of economic candidates in the third group and that for and social activity'. The members of the that reason the Economic and Social Committee are chosen on the basis of a list Committee now in office does not include submitted by each Member State containing any Italian representative of business managers (whereas in 1982 Mr d'Elia was a * Translated from the German. 1 — OJ 1986, C 244, p. 2. 2 — OJ 1986, L 354, p. 1 « seq.

9. It must also be accepted that these applicants are individually concerned. As is well known, the Court lays weight on the 6. Doubt has been cast on the admissibility question whether the legal position of the of the action brought by the applicant applicant has been affected by a factual organization on the ground that having situation which differentiates him from all regard to the method of appointing the other persons, 3 or as it was put in the Economic and Social Committee, that judgment in Case 169/84, 4 whether a legal organization is in no way concerned by the measure affects the applicant by reason of contested decision or, at the very least certain attributes which are peculiar to him (according to the Spanish Government), is or by reason of circumstances in which he is not directly concerned by that decision. differentiated from all other persons. In this With regard to the two individual case that can certainly be said, since the two applicants, the question arises whether they individual applicants are distinguished from are in fact individually concerned or whether they were excluded from the 3 — Judgment of 18 November 1975 in Case 100/74 CAM v Economic and Social Committee on the Commission [1975] ECR 1393. 4 — Judgment of 28 January 1986 in Case 169/84 Compagnie same basis as any other person not française de l'azote (Cofaz) SA and Others v Commission appointed. [1986] ECR 391.

OPINION OF MR LENZ — CASE 297/86

all other persons who were not appointed Committee are 'appointed in their personal by virtue of the fact that their names were capacity and may not be bound by any included in the Italian proposal. mandatory instructions'. It is also significant in that regard that at the meeting of the permanent representatives of 14 April 1958 (preparing for the appointment of the first members of the Economic and Social 10. 2. On the other hand, the objections Committee), the Italian delegation stated concerning the admissibility of the action that members of the Committee 'ne doivent seem more justified in regard to the Italian être liés par aucun mandat impératif'. applicant organization.

12. Furthermore, importance may be attached to the fact that the Economic and Social Committee is composed only of indi­ viduals, not persons appointed in their 14. On the other hand, some weight must capacity as members of an association. That be given to the argument based on the follows from Article 194 of the EEC Treaty, judgment in Case 66/76, 8 delivered in a according to which the members of the similar case under the ECSC Treaty (a French association brought an action against the refusal to include it as a representative 5 — Order of the Court of 5 November 1986 in Case 117/86 Union de Federaciones Agrarias de España (Ufade) v Council organization obliged to draw up a list of [1986] ECR 3255. candidates for the Consultative Committee). 6 — Judgment of 10 July 1986 in Case 282/85 Comité dt dével- oppement et de promotion du textile et de l'habillement (DEFI) v Commission [1986] ECR 2469. 8 — Judgment of 17 February 1977 in Case 66/76 7 — Judgment of 28 October 1982 in Case 135/81 Groupement Confédération française démocratique du travail (CFDT) v des agences de voyages v Commission [1982] ECR 3799. Cornici/[1977] ECR 310, paragraph 8.

CIDA v COUNCIL

16. Finally, the reference at the hearing by the representative of the Spanish 19. (a) With regard to the applicants' Government to the possibility open to the complaint that the Italian list of proposed Commission and the Member States of candidates was unbalanced because repre­ obtaining judicial review of a Council sentatives of business managers were decision adopted under Article 194 of the included only in the list of alternative EEC Treaty is also, to my mind, uncon­ candidates, which is generally disregarded vincing. Obviously such possibilities, which (notwithstanding the fact that the

OPINION OF MR LENZ — CASE 297/86

20. Furthermore, it certainly cannot be argued that the second subparagraph of 22. After all that has been said in that Article 195 (1) is complied with only if the regard, it is difficult to imagine that that national lists of proposed candidates also could be so in this case. meet its requirements. That must be very difficult, for example, in small countries which have only a few members of the Committee, and therefore, as we were told, 23. (aa) There can be no question of an from 1958 onwards care was taken to infringement of Article 195 on the basis of allocate the seats in the Economic and the argument initially put forward by the Social Committee to the various groups and applicants to the effect that there are no countries in such a way as to comply in an representatives of business managers in the overall manner with the second new Social and Economic Committee. subparagraph of Article 195 (1) (I am referring here to Annex I to the memo­ randum of the Secretariat of the Council of 24. In fact, as has been shown, that 11 March 1958, which incidentally also category is represented by a member of the shows that even the larger Member States French confédération générale des cadres did not have representatives in every (General Confederation of Company category). Furthermore, the method of Directors and Managers) (which, in 1949, appointing members of the Economic and together with CIDA and a German asso­ Social Committee (on the basis of national ciation, formed the confédération interna­ lists containing twice as many candidates as tionale des cadres (International Federation there are seats) is clearly directed not at a of Executive Staffs) of which Mr d'Elia mere fusion of the national lists at remains president). The member of the Community level but, to the extent board of the Luxembourg fédération des necessary, an appropriate choice on the employés privés (Federation of Private basis of those lists in order to comply with Sector Office Workers), an association Article 195. which is also a member of the confédération internationale des cadres, should also be regarded as a representative of that category, as the Council's representative 21. (b) It must therefore be accepted that, argued, without being contradicted, at the having regard to the fact that the list of hearing. Thus the question raised by the categories to be represented set out in Council as to whether company directors Article 193 is provided merely by way of and managers do in fact constitute a

28. The reply to that argument is that the EEC Treaty is not concerned with the adequate representation of organizations (and thus with their size), but with the 26. The Council rightly emphasized in that representation of social categories. It should regard that the Treaty speaks of the repre­ also be emphasized that the adequate repre­ sentation not of organizations but of sentation referred to in Article 195 of the economic and social categories (and, as has EEC Treaty must exist not at national level been seen, company directors and managers but at Community level. However, it was are in fact represented). Nothing in the not argued that by virtue of the composition applicants' arguments indicates that of the Italian list of proposed candidates, company directors and managers, as a which must be viewed in the context of the category, are now inadequately represented members appointed from other lists, (they are in fact represented by the workers and public undertakings, which are Luxembourg and French associations, the undoubtedly significant categories, are over- second of which, we were told, is represented in the Economic and Social considerably larger than CIDA). The Committee. It may be added that even if applicants merely argued that no justifi­ there were an excessive number of cation was given for the fact that CIDA was candidates from those two categories in the no longer represented in the Economic and Italian list (a complaint which should have Social Committee. That cannot of itself been raised at national level) that would not constitute an erroneous exercise of prove that company directors and managers discretion. were inadequately represented. The correct way of assessing their representation is to compare it to that of other categories (in regard to which nothing further was said), and it can in no way be excluded that a possible over-representation of workers and public undertakings might be to the disad­ 27. (cc) Finally, an allegation of erroneous vantage of categories other than company exercise of discretion cannot be justified on directors and managers.

30. In their second submission, the applicants complain that by merely 34. (bb) Nor does the fact that the Italian appointing the candidates proposed by Italy list of proposed candidates initially as principal candidates and by failing to submitted contained only names, with no verify whether the various categories were further information concerning the persons thereby adequately represented the Council proposed, prove that the Council did not failed to make lawful use of its powers and make the assessment required of it. At the in fact handed the appointment of the hearing it was stated, and reference was members of the Economic and Social made to a telex on this subject, that the Committee over to the governments of the Council had indeed seen that defect and individual Member States. insisted that the list be made complete. When the members of the Economic and Social Committee were appointed it was therefore known to which organizations the Italian candidates belonged and it was thus 31. (a) Having regard to the usual defi­ possible to determine the category to which nition of a misuse of powers (use of powers they belonged for the purposes of Article for purposes other than those envisaged by 193 of the EEC Treaty. the law) it can be said first of all that it is questionable whether this criticism actually alleges a misuse of powers or whether it merely suggests an infringement of the Treaty (failure to make the assessment required by the second subparagraph of 35. (cc) Furthermore, the fact that the Article 195 (1)). minutes of the Council meeting, which were submitted to the Court, make no mention of any verification of the lists or of any discussion on that subject cannot be relied on in support of the applicants' complaint. 32. (b) However, what is more important, As the Court has seen, the Council's and here I am anticipating the outcome of decision was adopted as one of the 'A items' my enquiry, is that even in their second on the agenda; that is to say, the Council submission the applicants do not produce relied essentially on the preparatory work sufficient evidence to justify the annulment carried out by the Permanent Represen­ of the Council's decision. tatives Committee. There is nothing to

37. Leaving aside the fact that Article 195 speaks only of European organizations (it is 39. Nor can the Commission's response difficult to see how CIDA, as a national upon being consulted by the Council be association, could be consulted under that criticized. In several letters, the Commission provision), it is important to note that expressed its views on the Member States' according to Article 195 such consultation is proposals. It expressed its view for the last not required but is at the discretion of the time one day before the decisive meeting of Council. It is difficult to see in what way the Permanent Representatives Committee. there has been a misuse of powers, At that time it had in its possession all the inasmuch as it appeared from the statements lists of candidates and had received the last of the Council's representative at the list, including explanations sent a few days hearing that the provision on consultation later, almost one month earlier. The was not applied because in previous years Council meeting at which the members of notices in the press calling upon such bodies the Economic and Social Committee were to express their views had had 'disap­ appointed took place on 15 and 16 pointing results'. 9 September 1986, that is to say, more than four weeks after the receipt of the last 9 — 'Des resultats quelque peu décevants'. communication from a Member State. It

OPINION OF MR LENZ —CASE 297/86