61974J0072

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1 . PROCEEDINGS - APPLICATION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - DECISION OF INDIVIDUAL CONCERN TO THEM - MEANING

( EEC TREATY, ARTICLE 173 )

2 . PROCEEDINGS - APPLICATION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - ORGANIZATION FOR THE PROTECTION OF COLLECTIVE INTERESTS - MEASURE AFFECTING THE GENERAL INTERESTS OF SUCH AN ORGANIZATION - NOT A DECISION OF INDIVIDUAL CONCERN TO IT

1 . NATURAL OR LEGAL PERSONS TO WHOM ARTICLE 173 REFERS AND TO WHOM THE DISPUTED MEASURE IS NOT ADDRESSED MAY ONLY CLAIM THAT THE MEASURE IS OF INDIVIDUAL CONCERN TO THEM IF IT AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM, OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS, AND BY VIRTUE OF THESE FACTORS DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

2 . AN ORGANIZATION FORMED FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF A CATEGORY OF PERSONS CANNOT BE CONSIDERED AS BEING DIRECTLY AND INDIVIDUALLY CONCERNED BY A MEASURE AFFECTING THE GENERAL INTERESTS OF THAT CATEGORY .

THE MERE PARTICIPATION OF SUCH AN ORGANIZATION 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, IT MAY POSSESS IN RELATION TO THAT MEASURE .

IN CASE 72/74

UNION SYNDICALE - SERVICE PUBLIC EUROPEEN, BRUSSELS, FEDERATION DE LA FONCTION PUBLIQUE EUROPEENNE, BRUSSELS, SYNDICAT DES FONCTIONNAIRES INTERNATIONAUX ET EUROPEENS, BRUSSELS, SYNDICAT GENERAL DU PERSONNEL DES ORGANISMES EUROPEENS, LUXEMBOURG, UNION SYNDICALE EURATOM, KARLSRUHE, UNION SYNDICALE EURATOM, ISPRA, UNION SYNDICALE EURATOM, PETTEN, AND SYNDICAT GENERAL DU PERSONNEL DES ORGANISMES EUROPEENS, EUROPEAN 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, APPLICANTS,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, 170 RUE DE LA LOI, 1040 BRUSSELS, REPRESENTED BY J . L . DEWOST, DIRECTOR-GENERAL OF THE LEGAL DEPARTMENT OF THE COUNCIL, ASSISTED BY A . SACCHETTINI, ADVISER IN THE LEGAL DEPARTMENT OF THE COUNCIL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF J . N . VAN DEN HOUTEN, DIRECTOR-GENERAL OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DECISION OF THE COUNCIL OF 22-23 JULY 1974, REJECTING ANY PROPOSAL FOR THE READJUSTMENT OF THE REMUNERATION OF EUROPEAN OFFICIALS, AND RECOGNITION OF THE RIGHT TO REPARATION FOR THE LOSS SUFFERED THEREBY,

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 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 .

4 ACCORDING TO THE DEFENDANT, THE APPLICATION IS INADMISSIBLE BOTH BY REASON OF THE NATURE OF THE MEASURE CRITICIZED AND BY REASON OF THE FACT THAT THAT MEASURE IS NOT OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS .

5 ON 20 AND 21 MARCH 1972, THE COUNCIL, WITH A VIEW TO ENSURING AN INCREASE IN REAL TERMS OF THE PURCHASING POWER OF COMMUNITY SALARIES ON THE ANNUAL APPLICATION OF ARTICLE 65 OF THE STAFF REGULATIONS OF OFFICIALS, UNDERTOOK FOR A TRIAL PERIOD OF THREE YEARS TO FIX THE LEVEL OF SUCH INCREASE WITHIN A BRACKET FORMED BY TWO INDICES OF THE GROWTH OF THE PURCHASING POWER OF REMUNERATION IN THE PUBLIC SERVICE IN THE MEMBER STATES .

6 ON THE BASIS OF THE INDICES RELATING TO THE PERIOD FROM 1 JULY 1971 TO 30 JUNE 1972, THE COUNCIL DECIDED TO FIX THE INCREASE TO BE APPLIED FOR THE SALARY YEAR BEGINNING 1 JULY 1972 AT 3.65 PER CENT AND CONSEQUENTLY ADOPTED A NEW TABLE OF MONTHLY SALARIES WITH EFFECT FROM 1 JULY 1972 BY REGULATION NO 2188/73 OF 9 AUGUST 1973 ( OJ L 223 OF 11 . 8 . 1973 ).

7 FURTHER, ON 18 DECEMBER 1973, ON THE BASIS OF THE INDICES RELATING TO THE PERIOD FROM 1 JULY 1972 TO 30 JUNE 1973, IT DECIDED TO FIX THE INCREASE TO BE APPLIED FOR THE SALARY YEAR BEGINNING 1 JULY 1973 AT 3.3 PER CENT AND CONSEQUENTLY ADOPTED A NEW TABLE OF SALARIES BY REGULATION NO 2/74 OF 28 DECEMBER 1973 ( OJ L 2 OF 3 . 1 . 1974 ).

8 HOWEVER, BOTH THE COMMISSION AND VARIOUS TRADE UNIONS REPRESENTING THE STAFF, GROUPED IN A LIAISON COMMITTEE OF THE TRADE UNIONS OF EUROPEAN OFFICIALS, CONSIDERED THAT ONE OF THE INDICES USED PRODUCED ERRORS ADVERSELY AFFECTING THE STAFF AND CALLED UPON THE COUNCIL TO CORRECT THEM .

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 .

14 THE APPLICANTS MAINTAIN THAT SUCH IS THE CASE BECAUSE THE MEASURE CRITICIZED CONCERNS THE COLLECTIVE INTERESTS OF THE OFFICIALS AND SERVANTS OF THE COMMUNITIES, AND THE PROTECTION OF THOSE INTERESTS, FOR WHICH THEY WERE FORMED, IS THE REASON FOR THEIR EXISTENCE AND FOR THEIR LEGAL CAPACITY .

15 DURING THE ORAL PROCEDURES THEY MAINTAINED, IN ADDITION, THAT THE MEASURE IN DISPUTE IS IN ANY EVENT OF INDIVIDUAL CONCERN TO THEM BECAUSE THEY ARE PARTIES TO THE DECISION OF 20 AND 21 MARCH 1972 WHICH IS THE RESULT OF NEGOTIATIONS BETWEEN THE COUNCIL, THE COMMISSION AND THE TRADE UNIONS .

16 IN THE SYSTEM OF FORMS OF ACTION LAID DOWN BY THE TREATY NATURAL OR LEGAL PERSONS TO WHOM ARTICLE 173 REFERS AND TO WHOM THE DISPUTED MEASURE IS NOT ADDRESSED MAY ONLY CLAIM THAT THAT MEASURE IS OF INDIVIDUAL CONCERN TO THEM IF IT AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM, OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS, AND BY VIRTUE OF THESE FACTORS DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

17 IN THIS CONTEXT, AN ORGANIZATION FORMED FOR THE PROTECTION OF THE COLLECTIVE INTERESTS OF A CATEGORY OF PERSONS CANNOT BE CONSIDERED AS BEING DIRECTLY AND INDIVIDUALLY CONCERNED BY A MEASURE AFFECTING THE GENERAL INTERESTS OF THAT CATEGORY .

18 MOREOVER THE SECOND PARAGRAPH OF ARTICLE 37 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, BY GRANTING THE RIGHT TO INTERVENE TO ANY PERSON ESTABLISHING AN INTEREST IN THE RESULT OF ANY CASE SUBMITTED TO THE COURT, ENABLES TRADE UNIONS REPRESENTING STAFF TO PUT THEIR CASE TO THE COURT, IN PARTICULAR IN THE CONTEXT OF THE PROCEEDINGS REFERRED TO IN ARTICLE 179 OF THE TREATY AND DEFINED BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS .

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 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 .

21 FURTHER, IN SO FAR AS IT SEEKS COMPENSATION BY WAY OF REPARATION FOR THE LOSS SUFFERED BY OFFICIALS AND SERVANTS, IT IS CONCERNED WITH THE PERSONAL PROPRIETARY INTERESTS OF THOSE OFFICIALS AND SERVANTS AND NOT WITH A COLLECTIVE RIGHT TO REPARATION, WHICH MOREOVER THE APPLICANTS DO NOT CLAIM TO POSSESS .

22 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .