C-193/87

II — The admissibility of the application by the European Public Service Union 1061

(1) The formal admissibility of the application 1061

(2) Article 91 of the Staff Regulations 1062

(3) Article 173 of the Treaty 1063

(a) The admissibility of the application in so far as it is directed against an act of the Court of Auditors 1063

(b) The application against the letter of 17 March 1987 1065

(1) The admissibility of the application 3. It should also be noted that, by order of against the letter of 17 March 1987 10 July 1987, the President of the Third Chamber dismissed Mr Maurissen's application for an order suspending the 7. With respect to the letter of 17 March, operation of those measures. the Court of Auditors contends that it is not an act having an adverse effect in so far as 'it in no way affects the position of the applicant under the Staff Regulations and 4. I shall consider the admissibility of the he, for his part, has no interest in insisting two applications separately. that trade-union leaflets should be distributed by the messenger service'. Moreover, it is undisputed that trade-union publications continue to be distributed in I — The admissibility of Mr Maurissen's the Court of Auditors but this is now done application by trade-union officials; accordingly, the applicant cannot assert that it is impossible for him and the employees of the Court of Auditors to keep themselves informed of 5. Let me first point out that the applicant action undertaken by the trade-union. inappropriately places reliance on the order given in response to his application for interim relief. He attaches importance to the 8. I should emphasize straight away that the fact that that decision did not determine concept of a measure having an adverse that his application was inadmissible. effect constitutes a precondition for admissi­ However, although it is true that 'an bility and no assessment of legality is application for the adoption of interim involved. At this stage, there is no question measures is inadmissible if the main of determining whether the Court of application is manifestly inadmissible', 2it Auditors is legally obliged to provide for the must be remembered that 'the judge charged distribution of trade-union communications with the task of adjudicating on an by its messenger service: that is a matter of application for interim relief cannot substance. prejudge... whether the main application is admissible'. 3

Like Mr Trabucchi, 5I consider that 12. Thus, the Court declared inadmissible an action brought in respect of an obser­ vation addressed to an official by her superior following a mission away from her 'while it is true that the question of the place of employment carried out without a admissibility of an act can sometimes be travel order for that purpose. The Court closely linked with the merits of the dispute, stated that the dispute related it would be wrong to confuse the procedural concept of an act adversely affecting an official, which merely imposes the requirement of a preliminary exam­ ination of his interest in bringing the action, 'exclusively [to] internal relationships within and the concept of an act infringing a the service and, more particularly, questions substantive right, which can arise only at the of administrative and working organization stage of a decision on the merits of the in the offices of the Commission'. 8 dispute'.

OPINION OF MR DARMON — JOINED CASES 193 AND 194/87

he previously exercised his authority was of And the Court held that: such a nature as to detract from his rights under Articles 5, 6 and 7 of the Staff Regu­ lations. 'it cannot be doubted that the applicants, who were at the same time voters and candidates in the contested elections, are 14. Moreover, the Court has conceded that: qualified to bring their action and have a 13 legal interest in doing so'.

'it cannot be considered a priori that [a transfer decision] is not capable of adversely 16. The Court's decisions thus display a affecting the person concerned' degree of flexibility in appraising applicants' interest in bringing proceedings and the existence of acts adversely affecting them. since

17. In the light of those observations, let us 'even if a decision such as that does not consider Mr Maurissen's circumstances in affect the material interests or the rank of relation to the contested measure. In doing an official it may ... adversely affect the so, I shall consider two questions non-material interests and future prospects of successively: first, is the distribution of 10 the officer concerned'. trade-union communications of such a nature as to have any bearing on the applicant's position under the Staff Regu­ lations? If so, does the measure in question 15. Finally, it should be recalled that in de objectively affect his position in that respect Dapper11in which a number of officials and, accordingly, does he have an interest in alleged irregularities in the election of the contesting it? European Parliament Staff Committee, Mr Advocate General Mayras stated that:

19. No kind of trade unionism is the contested measure. But it is not conceivable without information being given sufficient, for the purposes of considering to members and to staff. If the distribution admissibility, to rule out the possibility that of trade-union information were not discontinuance of the distribution of recognized as associated with the individual trade-union communications by the internal rights of officials who are members of trade messenger service has an adverse effect. unions, Article 24a would in that respect be reduced to a theoretical statement of a right shuttered within arcane limits depriving it of real scope. The output of trade-union views 23. As we have seen, the previous decisions must therefore be regarded as an essential of the Court bear out the possibility of an corollary of the individual right of action against a measure which may trade-union membership vested in officials. adversely affect in particular the non-material interests of the employee concerned. The measure at issue here is one which already affects the specific conditions for the exercise of the trade-union rights of 20. Can it be considered that the contested the applicant who will have to devote his measure is liable to affect the applicant's own time to the task of distribution. position in that respect? Moreover, it seems that the trade-union member's own non-material interests are affected by a measure which renders the distribution of trade-union information considerably less easy. 21. It seems to me undeniable that the distribution of trade-union communications by the internal messenger service considerably eased the task of trade-union officers, including the applicant. The 24. The contested measure consequently delivery of trade-union leaflets to all appears liable significantly to affect the officials, in all offices, following a single applicant's position as regards the exercise delivery to the messenger service clearly of his trade-union rights. In that respect I made matters simpler. Moreover, it helped would particularly emphasize the not incon­ to ensure efficient distribution to all siderable impact of the contested measure. employees of the institution, whether or not Let me recall the views of Mr Advocate trade-union members. Recourse to tradi­ General Roemer regarding the exclusion of tional distribution of leaflets by members of applications against measures of an internal the trade union constitutes an objectively nature: much less favourable situation: the members necessarily have to use their free time — in the lunch hour or after work — for that purpose. 'The principle arises from the desire to avoid outside jurisdiction encroaching too far on the details of the business of an admin- istration, for such interference might affect the productivity of public bodies and is 22. The Court of Auditors observed that difficult to reconcile with the dignity of the distribution of trade-union information judicial decisions'. 14

30. However, it does not seem to me to be necessary to go into this matter in any and, applying that concept in the present case, declare Mr Maurissen's application greater detail since previous decisions of the admissible in that respect. Court support the view that the application is admissible, even though the letter of 31 March confirms, as far as Mr Maurissen is concerned, the decision of 25 March. In (2) The admissibility of the application dealing with a similar difficulty in the against the letter of 31 March 1987 Morbelli case, the Court held the application to be admissible.

17. In response to the action brought against the letter of 31 March 1987, the Court of Auditors denies that the contested 31. The Commission had there raised an measure constitutes a decision adversely objection of inadmissibility against an action affecting the applicant which he has a against an express decision confirming an personal interest in having annulled, and implied decision of rejection, which was in contends, moreover, that it is a confir­ fact brought within the period allowed for matory decision. proceedings against the latter decision. The Court held that:

28. As regards the latter submission, the defendant contends first that the contested measure confirmed a refusal addressed to 'since the decision of 30 May 1980 and the earlier implied decision to reject the 15 — Vedel et Delvolvé: 'Droit administratif, PUF, 1982, complaint were the same in substance, it is p. 246, emphasis added. 16 — Opinion of Mr Advocate General Trabucchi in Case irrelevant to establish which of those 35/72, supra, at p. 697. decisions the application formally contests

32. Finally, the Court of Auditors contends that the letter of 31 March 1987 confirms its II — The admissibility of the application by position that it is unable to grant special the European Public Service Union leave without a legal basis for it. Apart from the decision of 25 March which I have just mentioned, it did not refer to any specific 36. In the first place, it is appropriate to measure in that connection. The procedural consider the formal objection of inadmissi­ concept of a confirmatory measure pres­ bility based on Article 38(5) and (7) of the upposes the existence of a previous measure Rules of Procedure: subheading (1) infra. I which it merely repeats: the measure shall then briefly consider the possibility of 'confirmed'. The Court will therefore the applicant relying on the remedy dismiss that submission. provided by Article 91 of the Staff Regu­ lations: subheading (2) infra. Finally, I shall assess the admissibility of the application in so far as it is based on Article 173 of the 33. It is now necessary to consider whether Treaty: subheading (3) infra. the letter of 31 March 1987 constitutes a measure adversely effecting Mr Maurissen, which he has an interest in having annulled. (1) The formal admissibility of the My observations will be fairly brief in view application of what I have said previously concerning the decision of 17 March 1987.

37. According to the Court of Auditors, the 18 application is inadmissible because there is no proof that the instructions given to the 34. As we have seen, membership of a trade lawyer to bring the action were properly union includes for the official concerned the drawn up by a representative with authority right to take an active part in trade-union to do so. activity. It seems to me to be obvious that 18 — In view of the observations in the defendant's rejoinder, it 17 — Judgment of 21 May 1981 in Case 156/80 Morbilli v should be noted that a complete copy of the applicant's Commitiion [1981] ECR 1357, paragraph 14, emphasis statutes has been lodged at the Court Registry In this added respect, therefore, the application has been put in order.

38. It will be remembered that the say, the formal requirement at issue — must European Public Service Union produced a give rise to rejection of the application on power of attorney granted on 18 June 1987 the ground of want of form. The Court thus to Maître Louis by Mr Adam Buick, the has a discretion in that regard. It should General Secretary, 'pursuant to the decision also be noted that Article 38(7) allows adopted on 23 March 1987 by its Executive matters to be rectified after the application Committee'. The Court asked the applicant has been lodged. to furnish documents proving that Mr Buick was validly empowered to give such instructions, such as decisions of the Executive Committee, minutes of a meeting 42. In my opinion, it would be excessively or an extract from the Register of Resol­ formalistic to reserve the benefit of that utions. provision exclusively for cases where, after the lodging of the application, an instrument of an earlier date is produced. In the present case, the reply addressed to the Court at least indicates the incontestable 39. The Union did not produce any such wish of the Executive Committee of the documents. However, it stated that its Union to regularize the situation by Executive Committee decided at a meeting 'confirming' the power of its General of 19 December 1988 to give the following Secretary to bring the action. I therefore answer to the Court's request: 'The General invite the Court to take the view that the Secretary in fact had general authority to Resolution of 19 December 1988 bring any action before the Court of Justice constituted ex post facto regularization of on behalf of the Union. The power of the application, within the scope of Article attorney given on 18 June 1987 was, so far 38(7) of the Rules of Procedure. as necessary, ratified at the meeting of the Executive Committee on Thursday, 25 June 1987. The Executive Committee confirms that Mr A. Buick was therefore validly (2) Article 91 of the Staff Regulations empowered to give a power of attorney to Maître Louis to institute proceedings against each of the contested decisions'. 43. In view of previous decisions of the Court, the arguments advanced by the European Public Service Union, which moreover were raised for the first time at 40. In any event, there is no escaping the the hearing, must be categorically rejected. fact that it has not been proven that at the The Court has held that: date on which the action was brought Mr Buick was 'authorized' to give instructions to the lawyer. What impact will this situation have on the admissibility of the 'a staff association which fulfils those action? 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', 41. Article 38(7) of the Rules of Procedure provides that the Court will decide whether failure to comply with the requirements of paragraphs 2 to 6 of that article — that is to but,

(a)7fte admissibility of the application in so 45. And the Court ruled out the possibility far as it is directed against an act of the Court of a trade union, even if it invokes interests of Auditors appertaining to it, relying on the remedy in question, since, even though the Advocate General had not ruled out such an entit­ lement, the Court held that: 49. The parties' observations do not make our task any easier since they contain very little information: the Court of Auditors merely states that it is for the Court to 'the channel of appeal provided for in resolve the difficulty and, at the hearing, the Article 91 is available only to officials or European Public Service Union merely servants'. 21 referred to the possible transposition of the solution adopted with respect to the 19 — Judgments of 8 October 1974 in Case 175/73 Union European Parliament in the judgment in Les syndicale v Counril[1974] ECR 917, paragraphs 17 and 18, and in Case 18/74 Syndical général du pinonnet v Verts.22Since the parties did not feel them­ Commiilion (1974) ECR 933, paragraphs 13 and 14. selves constrained to enter into a discussion 20 Case 175/73. supra, paragraph 19, and Case 18/74, supra, paragraph 15, emphasis added. 21 — Case 175/73, supra, paragraph 20, and Case 18/74, supra, 22 — Judgment of 23 April 1986 in Case 294/83 Parti écologiste paragraph 16, emphasis added. 'Les Verts'v European Parliament [1986] ECR 1339.

OPINION OF MR DARMON —JOINED CASES 193 AND 194/87

on the matter, I shall make the following the European Parliament from those which remarks. could be contested would lead to a result contrary both to the spirit of the Treaty as 23 expressed in Article 164 and to its system'.

52. In adopting that course, the Court affirmed the need for complete judicial protection in the following terms: 55. I should also point out that in its judgment in Les Verts the Court considered that the Parliament had not been expressly included in the first paragraph of Article 'It must first be emphasized in that regard 173 as a body whose acts could be the that the European Economic Community is subject of an action for annulment because a Community based on the rule of law, of the extremely limited nature of the inasmuch as neither the Member States nor powers initially conferred on it. its institutions can avoid a review of the question whether the measures adopted by 23 — Ibidem, paragraphs 23 and 25. them are in conformity with the basic 24 — It should be noted that the second paragraph of Article 1 of the Staff Regulations provides that: 'Save as otherwise constitutional charter, the Treaty. provided for, the Economic and Social Committee and the Court of Auditors shall, for the purpose of these Staff ' Regulations, be treated as institutions of the Community ; moreover, the Council decision of 22 and 23 June 1981 setting up a consultation procedure states that 'for the purposes of the present provisions, the Court of Auditors and the Economic and Social Committee shall have the standing of institutions'. 25 — G. Isaac: Lesfinancescommunautaires, RTDE No 2, 1980, p. 347. 26 — Megret, Waelbroek, Louis, Vignes, Dewost: Le droit de la An interpretation of Article 173 of the Communauté économique européenne, Vol. 11, Dispositions financières, p. 84, by A. Sacchettini, who notes the absence Treaty which excluded measures adopted by of the Court of Auditors from Article 4(1) of the Treaty.

(b) The application against the letter of 17 (c) The admissibility of the application March 1987 against the letter of 31 March 1987

58. Let it be said at the outset: in so far as it is directed against the letter of 17 March 62. The admissibility of the application in 1987 the European Public Service Union's so far as it is directed against the letter of action seems to be inadmissible as being out 31 March 1987 remains to be considered. of time.

59. The application was lodged on 22 June 63. In the first place, the Court of Auditors 1987. A letter dated 26 March 1987 from claims that the Union's application was out the President of the Union states: 'We of time. consider this refusal (to allow the leaflet to be distributed by the internal messenger service) to be an attack on the exercise of trade-union rights in the Court of Auditors. 64. It contends that it sent the contested The European Public Service Union will letter on 31 March and in that regard has take such further action as may be called produced a copy of its register of outgoing for'. mail. Having regard to the efficiency of the Luxembourg postal service, it is claimed that 27 — OJ L 359, 31.12.1977 it necessarily came to the applicant's 28 — Ankles 78f of the ECSC Treaty, 206a of the EEC Treaty and 180a of the EAEC Treaty cognizance on the following day. The

OPINION OF MR DARMON —JOINED CASES 193 AND 194/87

action, brought on 22 June, is therefore out 67. In the case of Michel, in which the of time. European Parliament contended that an action brought against a decision contained in an ordinary letter was out of time, the Court stated that: 65. That argument calls for two obser­ vations. The first is brief, but it is not any the less incisive. I must express the most serious reservations about evidence from a person's own sources. No document purporting to support a party's allegations 'the addressee of an unregistered letter is which emanates from that party should be not required to show the reasons for any 30 taken into account by the Court. In any delay in its delivery'. case, I should point out that the document produced by the Court of Auditors does not in any case establish the date on which the communication was received.

MAURISSEN AND OTHERS v COURT OF AUDITORS

70. However, the Union also states that the addressed to Mr Maurissen. In other words, minutes of the Executive Committee the letter of 31 March addressed to the meetings of 13 and 27 April show that its Union in reply to a request made by that members had no knowledge of the letter of union refusing to grant time off work for all 31 March 1987. It is obvious that there the officials named by the European Public remains a degree of uncertainty as to Service Union cannot be deemed to be whether the actual receipt of the letter by confirmatory with respect to the union of a those dates is contested. previous refusal in respect of a separate individual request made by one of the persons concerned.

is much wider than that of the refusal 32 — Opinion of Mr Advocate General Trabucchi in Case 31 — Case 195/80, supra, paragraph 28 el seq. 18/74, supra, especially at p. 955.

OPINION OF MR DARMON —JOINED CASES 193 AND 194/87

76. Finally, I shall without the slightest first of the alternatives contained in the hesitation dispose of the submission that the second paragraph of Article 173. It is contested measure is not of direct and indi­ therefore wholly incorrect in this instance to vidual concern to the applicant. The invoke the requirement laid down in that applicant is the addressee of the measure. It provision for cases where the measure is is therefore in the situation envisaged in the addressed to a third party.

77. I therefore propose that the Court:

(i) declare admissible the action brought by Mr Maurissen, and also that brought by the European Public Service Union in so far as it is directed against the letter from the Court of Auditors dated 31 March 1987,

(ii) declare the European Public Service Union's action inadmissible in all other respects,