61973J0175

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OFFICIALS - STAFF ASSOCIATIONS - CAPACITY AND ENTITLEMENT TO INSTITUTE PROCEEDINGS - LIMITS

( EEC TREATY, ARTICLE 173 AND 179; STATUTE OF THE COURT, ARTICLE 37; STAFF REGULATIONS, ARTICLE 24A, 90 AND 91 )

THE FREEDOM OF TRADE UNION ACTIVITY RECOGNIZED UNDER ARTICLE 24A OF THE STAFF REGULATIONS MEANS NOT ONLY THAT OFFICIALS AND SERVANTS HAVE THE RIGHT WITHOUT HINDRANCE TO FORM ASSOCIATIONS OF THEIR OWN CHOOSING, BUT ALSO THAT THESE ASSOCIATIONS ARE FREE TO DO ANYTHING LAWFUL, ESPECIALLY BY USING THE RIGHT OF ACTION, TO PROTECT THE INTERESTS OF THEIR MEMBERS AS EMPLOYEES .

THUS A STAFF ASSOCIATION WHICH FULFILS THE REQUIRED 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 AND, UNDER THE CONDITIONS SET OUT IN ARTICLE 37 OF THE STATUTE OF THE COURT, TO INTERVENE IN DISPUTES SUBMITTED TO THE COURT .

ON THE OTHER HAND A DIRECT ACTION BY A STAFF ASSOCIATION CANNOT BE ENTERTAINED UNDER THE PROCEDURE OF COMPLAINT AND APPEAL ESTABLISHED BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

IN CASE 175/73

UNION SYNDICALE - AMALGAMATED EUROPEAN PUBLIC SERVICE UNION -

BRUSSELS, MISS DENISE MASSA,

MRS ROSWITHA SCHOTS, NEE KORTNER,

OFFICIALS OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY M . GREGOIRE, LAWYER AT THE BRUSSELS COUR D'APPEL, RUE CAMILLE LEMONNIER, 68, 1060 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF T . BIEVER, LAWYER AT THE COURT, 83, BOULEVARD GRANDE-DUCHESSE CHARLOTTE, APPLICANTS,

V

COUNCIL OF THE EUROPEAN COMMUNITIES AT BRUSSELS, REPRESENTED BY G . LESORT, LEGAL ADVISER TO THE SECRETARIAT-GENERAL OF THE COUNCIL AT BRUSSELS, ASSISTED BY A . SACCHETTINI, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF P . LAMOUREUX, LEGAL ADVISER TO THE COMMISSION OF THE EUROPEAN COMMUNITIES, 4, BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF THE COUNCIL OF 22 DECEMBER 1972, PUBLISHED ON 3 JANUARY 1973, CONCERNING THE APPOINTMENT OF ROGER BRISAER AND CHARLES GOETZ TO ADMINISTRATIVE POSTS AT GRADE A6 AND OF ALL OTHER RELATED DECISIONS AND OF THE IMPLIED DECISION REJECTING THE APPLICANTS' COMPLAINTS,

1 THE APPLICATION SUBMITTED ON 22 OCTOBER 1973, ON THE BASIS OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, JOINTLY BY THE 'UNION SYNDICALE - AMALGAMATED EUROPEAN PUBLIC SERVICE UNION - BRUSSELS', MISS DENISE MASSA, AND MRS ROSWITHA SCHOTS, OFFICIALS OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, SEEKS TO ANNUL BOTH THE APPOINTMENTS OF ROGER BRISAER AND CHARLES GOETZ TO ADMINISTRATIVE POSTS AT GRADE A6 WHICH HAD BEEN THE SUBJECT OF THE NOTICES OF VACANCIES NOS 84/72 AND 86/72, AND THE EARLIER DECISIONS, TAKEN PRIOR TO THE SAID APPOINTMENTS, AS WELL AS THE IMPLIED REJECTION OF THE COMPLAINTS MADE BY THE SAID APPLICANTS ON 26 AND 27 MARCH 1973, SEEKING THE REVERSAL OF THE DECISIONS IN ISSUE .

2 BY WRITTEN SUBMISSION OF 27 NOVEMBER 1973 THE COUNCIL RAISED A PLEA OF INADMISSIBILITY AND ASKED THE COURT TO RULE THEREON WITHOUT ENTERING INTO THE MERITS .

3 THE FIRST CHAMBER OF THE COURT, BEFORE WHICH THE CASE WAS BROUGHT PURSUANT TO ARTICLE 95 ( 1 ) OF THE RULES OF PROCEDURE, REFERRED THE CASE TO THE COURT SITTING IN PLENARY SESSION, BY ORDER OF 13 FEBRUARY 1974 .

4 THE COURT DECIDED, PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE, TO RULE ON THE PLEA WITHOUT ENTERING INTO THE MERITS .

5 AS REGARDS THE ADMISSIBILITY OF THE APPLICATION, THE REQUEST SUBMITTED BY THE UNION SYNDICALE SHOULD BE DISTINGUISHED FROM THAT OF THE OTHER APPLICANTS .

6 IN EFFECT, THE LATTER ASSERT THAT THEY ARE ACTING IN THEIR OWN NAMES AND IN DEFENCE OF THEIR OWN INTERESTS, NOT AS MEMBERS OR OFFICERS OF THE FIRST APPLICANT .

AS REGARDS THE UNION SYNDICALE

7 THE COUNCIL CLAIMS, FIRSTLY, THAT THE APPLICANT UNION IS NEITHER AN 'AGENT' WITHIN THE MEANING OF ARTICLE 179 OF THE TREATY NOR A 'PERSON TO WHOM THESE STAFF REGULATIONS APPLY' WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS AND THAT ITS APPLICATION MUST ACCORDINGLY BE HELD INADMISSIBLE .

8 IT CLAIMS, SECONDLY, THAT THE RIGHT OF UNION ORGANIZATIONS TO INSTITUTE PROCEEDINGS FOR THE PURPOSE OF REPRESENTING THE COLLECTIVE INTERESTS OF THE STAFF AND TO CONTEST, ON THAT AUTHORITY, THE LEGALITY OF AN ADMINISTRATIVE ACT CANNOT BE HELD TO BE A GENERAL PRINCIPLE OF LAW RECOGNIZED IN THE MEMBER STATES AND WHICH MUST BE INCORPORATED INTO THE COMMUNITY LEGAL ORDER .

9 UNDER ARTICLE 24 A OF THE STAFF REGULATIONS, OFFICIALS ENJOY THE RIGHT OF ASSOCIATION AND, IN PARTICULAR, MAY BE MEMBERS OF TRADE UNIONS OR STAFF ASSOCIATIONS OF EUROPEAN OFFICIALS .

10 THE APPLICANT UNION IS AN ASSOCIATION ORGANIZING A SUBSTANTIAL NUMBER OF OFFICIALS AND SERVANTS OF THE COMMUNITY INSTITUTIONS AND COMPONENT BODIES ESTABLISHED IN BRUSSELS AND THERE IS NO REASON TO DOUBT ITS REPRESENTATIVE CHARACTER .

11 UNDER ITS RULES, ITS CONSTITUTIONAL STRUCTURE IS SUCH AS TO ENDOW IT WITH THE NECESSARY INDEPENDENCE TO ACT AS A RESPONSIBLE BODY IN LEGAL MATTERS .

12 THE COMMUNITY INSTITUTIONS OFFICIALLY RECOGNIZE IT AS A NEGOTIATING BODY ON QUESTIONS INVOLVING THE COLLECTIVE INTERESTS OF THE STAFF .

13 IT IS THEREFORE IMPOSSIBLE TO DENY THE APPLICANT UNION'S CAPACITY TO INSTITUTE PROCEEDINGS .

14 UNDER THE GENERAL PRINCIPLES OF LABOUR LAW, THE FREEDOM OF TRADE UNION ACTIVITY RECOGNIZED UNDER ARTICLE 24 A OF THE STAFF REGULATIONS MEANS NOT ONLY THAT OFFICIALS AND SERVANTS HAVE THE RIGHT WITHOUT HINDRANCE TO FORM ASSOCIATIONS OF THEIR OWN CHOOSING, BUT ALSO THAT THESE ASSOCIATIONS ARE FREE TO DO ANYTHING LAWFUL TO PROTECT THE INTERESTS OF THEIR MEMBERS AS EMPLOYEES .

15 THE RIGHT OF ACTION IS ONE OF THE MEANS AVAILABLE FOR USE BY THESE ASSOCIATIONS .

16 UNDER THE COMMUNITY LEGAL SYSTEM, HOWEVER, THE EXERCISE OF THIS RIGHT IS SUBJECT TO THE CONDITIONS DETERMINED BY THE SYSTEM OF FORMS OF ACTION PROVIDED FOR UNDER THE TREATIES ESTABLISHING THE COMMUNITIES .

17 THUS A STAFF ASSOCIATION WHICH FULFILS THESE 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 .

18 ON THE OTHER HAND, THE BRINGING OF A DIRECT ACTION IS INADMISSIBLE UNDER THE ARRANGEMENTS PROVIDED UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS FOR PROCEEDINGS TO BE BROUGHT BEFORE THE COURT, INSOFAR AS THESE PROVISIONS GIVE EFFECT TO ARTICLE 179 OF THE EEC TREATY AND THE CORRESPONDING ARTICLES OF THE ECSC AND EAEC TREATIES .

19 THOUGH ARTICLE 179 IS AVAILABLE AS A BASIS ON WHICH ARRANGEMENTS MAY BE MADE FOR SETTLEMENT BY THE COURT OF COLLECTIVE AS WELL AS INDIVIDUAL DISPUTES BETWEEN THE COMMUNITY AND ITS SERVANTS, THIS DOES NOT ALTER THE FACT THAT THE PROCEDURE FOR COMPLAINT AND APPEAL ESTABLISHED BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS IS DESIGNED TO DEAL EXCLUSIVELY WITH INDIVIDUAL DISPUTES .

20 THIS MEANS THAT THE CHANNEL OF APPEAL PROVIDED FOR UNDER ARTICLE 91 IS AVAILABLE ONLY TO OFFICIALS OR SERVANTS .

21 UNDER THE SECOND PARAGRAPH OF ARTICLE 37 OF THE STATUTE OF THE COURT THE RIGHT TO INTERVENE IS, ON THE OTHER HAND, OPEN TO ANY PERSON ESTABLISHING A LEGITIMATE INTEREST IN THE RESULT OF ANY CASE SUBMITTED TO THE COURT, INCLUDING THOSE COMING UNDER ARTICLE 91 OF THE STAFF REGULATIONS .

22 IN THE CIRCUMSTANCES OF THIS CASE, THEREFORE, AS TO THE FACTS AND TO THE LAW, THE COURT HAS NO JURISDICTION TO ENTERTAIN A DIRECT ACTION BROUGHT BY A STAFF ASSOCIATION UNDER ARTICLE 91 OF THE STAFF REGULATIONS .

23 THE APPLICATION MUST THEREFORE BE HELD INADMISSIBLE INSOFAR AS IT HAS BEEN MADE BY THE FIRST APPLICANT .

AS REGARDS THE APPLICANTS MASSA AND SCHOTS

24 THE ACTION MUST BE REFERRED TO THE FIRST CHAMBER OF THE COURT INSOFAR AS IT HAS BEEN INSTITUTED BY THE SECOND AND THIRD APPLICANTS .

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

26 IN VIEW, HOWEVER, OF THE GENERAL INTEREST OF THE ISSUE WHICH HAS BEEN RAISED THE FIRST APPLICANT SHOULD BE ORDERED TO BEAR ITS OWN COSTS AND THE REMAINING COSTS SHOULD BE RESERVED .

ON THOSE GROUNDS,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE INSOFAR AS IT HAS BEEN BROUGHT BY THE FIRST APPLICANT;

2 . ORDERS THE FIRST APPLICANT TO BEAR ITS OWN COSTS;

3 . ORDERS THE CASE TO BE TRANSFERRED BEFORE THE FIRST CHAMBER OF THE COURT INSOFAR AS REGARDS THE OTHER APPLICANTS .