Appeal brought on 27 June 2005 by Giorgio Lebedef against the judgment delivered on 12 April 2005 by the First Chamber of the Court of First Instance of the European Communities in Case T-191/02 between Giorgio Lebedef and the Commission of the European Communities

(Case C-268/05 P)

(2005/C 243/07)

Language of the case: French

An appeal against the judgment delivered on 12 April 2005 by the First Chamber of the Court of First Instance of the European Communities in Case T-191/02 between Giorgio Lebedef and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 June 2005 by Giorgio Lebedef, represented by G. Bouneou and F. Frabetti, lawyers.

The appellant claims that the Court should:

Set aside the judgment delivered on 12 April 2005 by the Court of First Instance of the European Communities in Case T-191/02 between Giorgio Lebedef, an official of the Commission of the European Communities, residing in Senningerberg (Luxembourg), represented by G. Bouneou and F. Frabetti, lawyers, with an address for service in Luxembourg, appellant, against Commission of the European Communities, represented by J. Currall, acting as Agent, with an address for service in Luxembourg, respondent — application for annulment of the Commission's decision of 5 December 2001, by which it repudiated the Framework Agreement of 20 September 1974, adopted again the operational rules concerning the levels, process and procedure of consultation agreed between the Commission and the majority of trade union and professional organisations on 19 January 2000, confirmed the Agreement of 4 April 2001 on the resources to be made available to the staff representatives, ratified the provisions on strikes laid down in Annex I to the Framework Agreement of 20 September 1974, requested the Vice-President of the Commission, Mr N. Kinnock, to negotiate with the trade union and professional organisations and to propose for adoption by the Commission, before the end of March 2002, a new Framework Agreement and to include in the series of amendments to the Staff Regulations, on which the trade union and staff organisations were to be consulted, an amendment providing for the opportunity to adopt electoral rules by way of a vote by the staff of the institution, and, if necessary, annulment of Mr Kinnock's letter of 22 November 2001 addressed to the President of each trade union to notify them of his decision to ask the Commission to repudiate, on 5 December 2001, the above-mentioned Framework Agreement of 20 September 1974, and to adopt several of the above-mentioned points, and annulment of Mr E. Halskov's decision of 6 December 2001 refusing to grant the applicant leave to attend, on a mission basis, the meeting of 7 December 2001 on the ‘comprehensive package of proposed amendments to the Staff Regulations’.

Please in law and main arguments:

In support of his action to have the judgment under appeal contested set aside, the appellant contests part 4, paragraphs 96 to 103, of the judgment. More specifically, the admissibility of ‘… the application for annulment of the decision of 5 December 2001 because it adopts operational rules and in so far as it denies rights guaranteed to the appellant under the Agreement of 4 April 2001’.

The operational rules, in so far as they exclude from the process of consultation the union represented thererin by the appellant, affect his situation by denying him individual rights conferred on him by his status as union representative in that process (see, to that effect, Joined Cases 193/87 and 194/87 Maurissen and Union Syndicale v Court of Auditors [1989] ECR 1045, and Case T-42/97 Lebedef v Commission [1998] ECR SC I-A-371 et II-1071, paragraphs 18 to 21). Accordingly, the operational rules adversely affect him and give him standing to challenge them with a view to having them annulled.

This finding is not affected by the case-law as established in Joined Cases T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [1994] ECRSC I-A-159 and II-511, paragraphs 82 and 86, and Joined Cases T-576/93 to T-582/93 Browet and Others v Commission [1994] ECR SC I-A-191 and II-619, paragraph 44. The situations in question in the cases giving rise to those judgments are distinguishable from the present case because, in this case, the appellant's rights derive directly from the rules on resources and, although conferred in order to facilitate the appellant's union's participation in the consultation, they fall within Staff Regulation proceedings because they affect directly his own legal situation.

In the judgment under appeal, with regard to the admissibility considered, the Court of First Instance accepted de facto that A&D (the appellant's union) is not representative. The appellant contests that finding because the operational rules do not examine objectively whether the trade unions and professional organisations are representative and there is a manifest error in the comparative assessment of that issue. Moreover, the principles of equal treatment and non-discrimination, with respect to the rights of the defence, the obligation to state reasons, the prohibition of arbitrary procedure and Article 24a of the Staff Regulations were breached.