61987J0193

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1.Officials - Decision adversely affecting an official - Decisions concerning the exercise of trade-union rights

( Staff Regulations of Officials, Art . 24a )

2.Officials - Action - Interest in bringing an action - Action for the annulment of a decision concerning the applicant' s performance of union duties - Admissibility

( Staff Regulations of Officials, Art . 91 )

3.Action for annulment - Action directed against a confirmatory decision - Inadmissibility - Condition - Application to staff cases

( EEC Treaty, Art . 173; Staff Regulations of Officials, Art . 91 )

4.Officials - Action - Procedure - Action brought by a trade-union organization - Inadmissibility

( Staff Regulations of Officials, Art . 91 )

5.Procedure - Time-limits - Mandatory nature - Action brought by a legal person - Introduction conditional on valid resolution of competent body - No effect on starting point of period for bringing proceedings

6.Action for annulment - Time-limits - Starting point - Notification - Concept - Burden of proof of notification

( EEC Treaty, Art . 173, third paragraph, and Art . 191 )

1.Decisions concerning the conditions under which officials may exercise trade-union rights affect the exercise of the right recognized by Article 24a of the Staff Regulations . Such decisions therefore produce legal effects and cannot be regarded as mere measures of internal organization .

2.An official who is a trade-union officer has, in that capacity, an interest in bringing proceedings against a decision affecting the conditions under which he must exercise his trade-union duties within the institution even if that decision is addressed to the trade-union organization to which he belongs and does not concern him exclusively .

3.An action for the annulment of a confirmatory decision, whether based on Article 173 of the Treaty or on Article 91 of the Staff Regulations, is inadmissible only if the confirmed decision has become final vis-à-vis the person concerned without any action having been brought before the Court within the prescribed period . Otherwise, the person concerned is entitled to contest either the confirmed decision or the confirmatory decision or both .

4.A trade-union organization cannot bring an action under Article 91 of the Staff Regulations since the remedy provided by that article is available only to officials and other servants of the Communities and not to trade-union organizations .

5.Time-limits for instituting proceedings are mandatory and it is not for the parties to determine them at their own convenience . Accordingly, whilst it is true that a legal person' s right to bring legal proceedings may in particular be subject to the existence of a resolution validly adopted by the body thereof empowered to decide on such a course, the starting point of the period for bringing an action cannot vary according to the internal rules or practices of the legal person concerned and therefore cannot be fixed as the day on which the competent body, duly constituted, validly takes cognizance of the decision to be contested .

6.Although a decision is properly notified within the meaning of Article 191 of the Treaty if it reaches the addressee and puts the latter in a position to take cognizance of it, it is the responsibility of the party alleging that an application is out of time, having regard to the time-limit laid down in the third paragraph of Article 173 of the Treaty for bringing an action for annulment, to prove on what date the decision was notified .

In Joined Cases 193 and 194/87

Henri Maurissen, an official of the Court of Auditors of the European Communities, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Yvette Hamilius, Avocat à la cour d' appel, 11 boulevard Royal,

and

European Public Service Union, Luxembourg, whose registered office is in Luxembourg, in the person of its General Secretary, Adam Buick, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Yvette Hamilius, Avocat à la cour d' appel, 11 boulevard Royal,

applicants,

supported by

Internationale des Services Publics, whose registered office is in Ferney-Voltaire, ( France ), represented by Michel Deruyver and Véronique Leclercq, of the Brussels Bar, with an address for service in Luxembourg at the chambers of Yvette Hamilius, Avocat à la cour d' appel, 11 boulevard Royal,

intervener,

v

Court of Auditors of the European Communities, represented by Michaël Becker and Marc Ekelmans, acting as Agents, Lucette Defalque, of the Brussels Bar, and Jean-Aimé Stoll, as Adviser, with an address for service in Luxembourg at the seat of the Court of Auditors,

defendant,

APPLICATION for :

1 . in Cases 193 and 194/87, the annulment of two decisions of the President of the Court of Auditors, namely :

( i ) the decision of 17 March 1987 instructing the internal messenger service of the Court of Auditors to temporarily refrain from assisting in circulating union circulars;

( ii ) the decision of 31 March 1987 refusing to grant representatives of the European Public Service Union time off work to enable them to attend meetings of the trade unions with the Commission of the European Communities on general staff matters;

2 . in addition, in Case 193/87, the annulment of a third decision of the President of the Court of Auditors dated 2 June 1987 in so far as it refused Mr Maurissen special leave in order to pursue courses of further training,

THE COURT

composed of O . Due, President, T . Koopmans, R . Joliet, T . F . O' Higgins and F . Grévisse ( Presidents of Chambers ), Sir Gordon Slynn, G . F . Mancini, C . N . Kakouris, F . A . Schockweiler, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, M . Díez de Velasco and M . Zuleeg, Judges,

Advocate General : M . Darmon

Registrar : D . Louterman, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 8 March 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 12 April 1989,

gives the following

Judgment

1 By application lodged at the Court on 22 June 1987 and registered under number 193/87, Mr Maurissen, an official of the Court of Auditors, brought proceedings under Article 91 of the Staff Regulations of Officials for the annulment of two decisions of the President of the Court of Auditors dated 17 and 31 March 1987 relating to participation in trade-union activities within the Court of Auditors .

2 In his application Mr Maurissen also challenged a decision of the President of the Court of Auditors dated 2 June 1987 refusing Mr Maurissen special leave in order to follow courses of further training . However, in the course of the proceedings Mr Maurissen declared that he was withdrawing those conclusions and it is therefore no longer necessary to give a decision thereon .

3 By application received at the Court on 22 June 1987 and registered under number 194/87, the European Public Service Union, Luxembourg (" the Union "), brought proceedings under the second paragraph of Article 173 of the EEC Treaty for the annulment of the two aforesaid decisions of the President of the Court of Auditors dated 17 and 31 March 1987 .

4 It is evident from the documents before the Court that in a leaflet dated 26 February 1987 concerning the intentions of the Court of Auditors regarding the forward estimate of expenditure for 1988, the Executive Committee of the European Public Service Union, Luxembourg, criticized the planned increase in the number of temporary staff . According to the leaflet, such an increase was likely not only to harm the status of the European civil service but also to jeopardize the independence of the Court of Auditors and compromise its role as the "financial conscience of Europe ".

5 On 17 March 1987, the President of the Court of Auditors sent to Mr Maurissen, the only official of the institution who was a member of the Executive Committee of the Union named at the foot of the leaflet, a letter in which he criticized the form and content of the leaflet and announced that he had decided temporarily to forbid the internal messenger service to distribute trade-union circulars . In his letter he asked Mr Maurissen in future to address those leaflets to the Staff Committee which could call on the internal messenger service for their distribution and he stated that any other form of distribution was a matter for him alone .

6 On 11 March 1987 the General Secretary of the European Public Service Union, Luxembourg, had informed the President of the Court of Auditors that a union delegation had been set up at the Court of Auditors and asked him to agree to give time off work to the members of the delegation designated to take part in meetings with the Commission of the European Communities on staff matters .

7 On 31 March 1987, whilst taking note of the establishment of a union delegation, the President of the Court of Auditors replied to the General Secretary of the Union that he could not accede to the request for time off work .

8 These applications are directed against the aforesaid decisions of 17 and 31 March 1987 .

9 Since the Court of Auditors has challenged the admissibility of each of those applications, the Court of Justice has decided to give a separate preliminary decision on those objections of inadmissibility .

10 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The admissibility of Mr Maurissen' s application

11 The Court of Auditors raises two pleas of inadmissibility against Mr Maurissen' s application, one contending that the contested decisions do not adversely affect the applicant and the other contending that the decision of 31 March 1987 is a confirmatory decision .

12 As regards the first plea of inadmissibility, the Court of Auditors alleges that those decisions do not adversely affect a right and that Mr Maurissen has no personal interest in contesting them .

13 It should be noted that pursuant to Article 91 of the Staff Regulations proceedings may be brought before the Court of Justice against acts adversely affecting officials and that, as the Court has consistently ruled, it is acts affecting a given legal situation that constitute such acts .

14 The contested decisions meet those requirements .

15 Under Article 24a of the Staff Regulations, "Officials shall be entitled to exercise the right of association; they may in particular be members of trade unions or staff associations of European officials ".

16 Without it being necessary to decide on the question whether the contested decisions adversely affect, lawfully or otherwise, the trade-union rights recognized by the aforesaid Article 24a, which is a matter for the examination of the substance of the case, it suffices to note that those decisions affect the exercise of that right since they relate to the conditions under which officials may exercise their trade-union rights .

17 Those decisions do therefore produce legal effects and they cannot be regarded as mere measures of internal organization .

18 Moreover, Mr Maurissen has an interest in bringing proceedings against each of those decisions, in any event in his capacity as a trade-union official .

19 The decision of 17 March 1987 is contained in a letter addressed to him and indicates a course of conduct which he must personally comply with for the distribution of trade-union circulars . In that sense it affects his own situation .

20 The same applies to the decision of 31 March 1987 . Mr Maurissen was expressly mentioned as one of the trade-union representatives who were asked to be given time off work in order to attend the meetings with the Commission . He therefore has an interest in challenging the rejection of that request by the President of the Court of Auditors, even though that rejection was addressed to the Union and does not concern Mr Maurissen exclusively .

21 The arguments put forward by the Court of Auditors regarding the plea of inadmissibility based on the confirmatory nature of the decision of 31 March 1987 cannot be accepted either .

22 The defendant contends that that decision merely confirms the position consistently adopted by the appointing authority of the Court of Auditors in refusing to grant its staff time off work in the absence of any adequate basis under the regulations or budgetary provisions .

23 Even if it were established, that contention provides no basis for the alleged inadmissibility since a decision can only confirm another decision against which an action before the Court can be properly brought .

24 It is true that the defendant contends that on 25 March 1987 it addressed to Mr Maurissen a decision refusing to grant him time off to attend a particular meeting in Brussels .

25 However, even if it were conceded that the decision of 31 March 1987, despite its general nature, could be regarded as confirming the decision of 25 March 1987, the applicant' s claims could not be declared inadmissible on that ground .

26 An application directed against a confirmatory decision is inadmissible only if the confirmed decision has become final vis-à-vis the person concerned without any action having been brought before the Court within the prescribed period . Otherwise, the person concerned is entitled to contest either the confirmed decision or the confirmatory decision or both .

27 In the present case, it appears from the documents before the Court that on the date on which Mr Maurissen brought his action against the decision of 31 March 1987, the decision of 25 March 1987 had not become final as far as he was concerned .

28 In view of all the foregoing, the objections as to the inadmissibility of Mr Maurissen' s application must be dismissed .

The admissibility of the European Public Service Union' s application

29 It must first be noted that, as the Union itself stated in its application, its action is based on the second paragraph of Article 173 of the Treaty . Moreover, it could not have been validly brought under Article 91 of the Staff Regulations since, according to previous decisions of the Court ( judgments of 8 0ctober 1974 in Case 175/73 Union syndicale and Others v Council (( 1974 )) ECR 917, and in Case 18/74 Syndicat général du personnel v Commission (( 1974 )) ECR 933 ), the remedy provided by Article 91 is available only to officials and other servants and not to trade-union organizations .

30 In challenging the admissibility of the Union' s application, the Court of Auditors contends that it is not in due form and raises specific objections of inadmissibility concerning the conclusions directed against each of the two contested decisions .

The application' s compliance with formal requirements

31 The Court of Auditors maintains that the Union failed to comply with Article 38(5 ) of the Rules of Procedure of the Court of Justice by not enclosing with its application all the instruments constituting and regulating it and "proof that the authority granted to the applicant' s lawyer has been properly conferred on him by someone authorized for the purpose ".

32 The first of those arguments is factually incorrect since the Union annexed to its rejoinder a complete certified version of the instruments constituting and regulating it .

33 The second argument must also be dismissed . First, when he lodged the present application on behalf of the Union, the latter' s lawyer, Jean-Noël Louis, held a power of attorney prepared by Mr Buick, the Secretary General of the Union . Secondly, although no prior resolution of the Executive Committee of the Union deciding to institute the present proceedings has been produced and the Court cannot therefore be certain that Mr Buick was then entitled to give a power of attorney for commencement of the proceedings on behalf of the Union, it must in any event be pointed out that, by resolution of 19 December 1988, the Executive Committee confirmed that "Mr A . Buick was therefore validly empowered to give a power of attorney to Maître Louis to institute proceedings against each of the contested decisions ".

34 Accordingly, the objections of inadmissibility raised by the Court of Auditors concerning the matters examined above must be dismissed .

The objections of inadmissibility made against the conclusions directed against the decision of 17 March 1987

35 It is unnecessary to give a decision on the other objections of inadmissibility made by the Court of Auditors regarding those conclusions since the latter are out of time and therefore inadmissible .

36 It is not disputed that the decision of 17 March 1987 was brought to the cognizance of the Union no later than 26 March 1987, on which date the President of the Union stated, in a letter addressed to the President of the Court of Auditors, that "the Executive Committee has taken note of the letter dated the 17th of this month ... addressed to Henri Maurissen ...".

37 The application instituting proceedings against that decision, which was received at the Court of Justice on 22 June 1987, was therefore lodged after the expiry of the period prescribed for bringing proceedings laid down in the third paragraph of Article 173 of the Treaty .

38 It is true that in reply to a question put to it by the Court of Justice, the Union claimed, with a view to preventing its conclusions from being time-barred, that the period prescribed for bringing proceedings against a decision concerning it could start to run against it only as from the day on which either the general meeting of the Union or its Executive Committee, at a meeting satisfying the conditions for the constitution of a quorum laid down in its internal rules, could validly take cognizance of the decision .

39 That argument can only be rejected . Time-limits for instituting proceedings are mandatory and it is not for the parties to determine them at their own convenience . Accordingly, whilst it is true that a legal person' s right to bring legal proceedings may in particular be subject to the existence of a resolution properly adopted by the board or committee thereof empowered to decide on such a course, the starting point of the period for bringing an action cannot vary according to the internal rules or practices of the legal person concerned and therefore cannot be fixed as the day on which the competent body thereof, duly constituted, validly takes cognizance of the decision to be contested .

40 The action must therefore be declared inadmissible in so far as it is directed against the decision of 17 March 1987 .

The objections of inadmissibility made against the conclusions directed against the decision of 31 March 1987

41 In the first place, the Court of Auditors contends that that decision is not of direct and individual concern to the Union .

42 That argument is in any event irrelevant . Since the Union is the addressee of that decision, which rejects an application made by it, the Union is entitled to bring an action against that decision pursuant to the second paragraph of Article 173 of the Treaty, and it is unnecessary to show that the decision is of direct and individual concern to it .

43 In the second place, the Court of Auditors contends that the contested decision does not adversely affect the Union since it merely confirms the position consistently adopted by the appointing authority in refusing to grant its staff time off work in the absence of any adequate basis under the regulations or budgetary provisions .

44 As explained in the present judgment with respect to Mr Maurissen' s application, even if the existence of such a consistent position were established, it could not of itself provide a basis for such an objection of inadmissibility, since, in its observations on the present application, the defendant neither establishes or even alleges that that position had previously been expressed in any decision against which an action before the Court of Justice could properly have been brought by the Union .

45 Lastly, the Court of Auditors contends that the action is out of time, on the ground that the letter of 31 March, containing the contested decision, was received by the Union on the day after its despatch by post, that is to say more than two months before the action was brought .

46 It must be noted in that connection that although a decision is properly notified within the meaning of the Treaty if it reaches the addressee and puts the latter in a position to take cognizance of it ( judgment of 21 February 1973 in Case 6/72 Europemballage and Continental Can v Commission (( 1973 )) ECR 215 ), it is the responsibility of the party alleging that an application is out of time to prove on what date the decision was notified ( judgment of 5 June 1980 in Case 108/79 Belfiore (( 1980 )) ECR 1769 ).

47 In the present case, the Court of Auditors has not produced the necesssary proof . It merely puts forward arguments described by it as "presumptions" but they cannot take the place of proof .

48 That objection of inadmissibility must therefore also be dismissed .

49 It is apparent from the foregoing that the application by the European Public Service Union must be declared admissible in so far as it is directed against the decision of 31 March 1987 .

50 Since Mr Maurissen' s application is admissible and the application of the European Public Service Union is partially admissible, it is necessary to consider the substance thereof and give a decision thereon .

Costs

51 The costs must be reserved .

On those grounds,

THE COURT

hereby :

( 1 ) Declares Mr Maurissen' s application admissible;

( 2 ) Declares the application of the European Public Service Union admissible in so far as it is directed against the decision of 31 March 1987;

( 3 ) Dismisses as inadmissible the application by the European Public Service Union in so far as it is directed against the decision of 17 March 1987;

( 4 ) Declares that the proceedings are to continue for consideration of the substance of the case and a decision thereon;

( 5 ) Reserves the costs .