61991O0322

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1. Actions for annulment of measures ° Actionable measures ° Definition ° Referendum of the staff organized by an institution ° Internal measure ° Excluded

(EEC Treaty, Art. 173)

2. Procedure ° Application initiating the proceedings ° Formal requirements ° Summary of the pleas in law on which the application is based

(Statute of the Court of Justice EEC, Art. 19; Rules of Procedure of the Court of Justice, Art. 38(1)(c))

1. The acts or decisions which may be the subject of an action under Article 173 of the EEC Treaty are measures producing binding legal effects of such a nature as to affect the interests of the applicant by bringing about a significant change in his legal position.

The decision by a Community institution to organize a referendum of its staff is a purely internal measure not creating any obligation for any person whatsoever to participate in the referendum. That measure which cannot, accordingly, directly and individually affect the legal position of a staff union, may not be the subject-matter of an action for annulment brought by that union.

2. In accordance with Article 38(1)(c) of the Rules of Procedure of the Court of Justice, the application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. The fact that an application does not specify the pleas in law relied upon in support of the applicant' s claims and, in particular, in the case of a claim for damages, the nature of the damage which it has allegedly suffered, or the event giving rise to such damage, renders the claim for damages inadmissible.

In Case C-322/91,

The Association of Independent Officials for the Defence of the European Civil Service/l' Association des Fonctionnaires Indépendants pour la Défense de la Fonction Publique Européenne (TAO/AFI), based in Brussels, represented by Eric J. H. Moons, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Lucy Dupong, 14 A, Rue des Bains,

applicant,

v

Commission of the European Communities, represented by John Forman, Legal Advisor, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the referendum organised by the Commission on 18 October 1991 in which staff were asked to vote on the compromise reached by the Permanent Representatives Committee of the Council and staff representatives on the method of adapting the remuneration of officials,

THE COURT (Sixth Chamber),

composed of: C.N. Kakouris, President of the Chamber, G.F. Mancini, F.A. Schockweiler, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: C. Gulmann,

Registrar: J.-G. Giraud,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 On 30 October 1991 Mr Andrew Macrae Moat, an official of the Commission of the European Communities, and the Association of Independent Officials for the Defence of the European Civil Service/l' Association des Fonctionnaires Indépendants pour la Défense de la Fonction Publique Européenne (TAO/AFI), brought an action against the Commission before the Court of First Instance of the European Communities.

2 Mr Moat' s application was based on Articles 90 and 91 of the Staff Regulations of Officials of the European Communities whilst the one of TAO/AFI was made pursuant to Article 173 of the EEC Treaty.

3 The action is for the annulment of the referendum organized by the Commission on 18 October 1991 in which staff were asked to vote on the compromise reached by the Permanent Representatives Committee of the Council and staff representatives on the method of adapting the remuneration of officials; for a declaration recognizing the right of TAO/AFI and other trade unions and professional associations to continue the negotiations pursuant to the Council Decision establishing a concertation procedure which was adopted at the 713th meeting of the Council, held on 22 and 23 June 1981; and, thirdly, for an order that the Commission should pay TAO/AFI exemplary damages, estimated at BFR 1 000 000.

4 Since it considered that it had no jurisdiction to adjudicate upon an application made pursuant to Article 173 of the Treaty, the Court of First Instance, by order of 4 December 1991, referred the application to the Court of Justice in so far as it was made by TAO/AFI.

5 By a separate document lodged at the Court Registry on 28 February 1992, the Commission raised an objection of inadmissibility pursuant to Article 91(1) of the Rules of Procedure and asked the Court to rule on that objection without considering the substance of the case. It considers that the referendum with which the action is concerned cannot be regarded as an act which is open to challenge under the second paragraph of Article 173 of the Treaty and that in any event it had no binding effect.

6 On 2 April 1992, TAO/AFI submitted its written observations on the objection of inadmissibility, in accordance with Article 91(2) of the Rules of Procedure.

7 Pursuant to Article 91(3) of those rules, the Court, considering that it was sufficiently informed by the observations which the parties had presented in writing, decided to rule on the application without any oral procedure.

The claim for annulment

8 According to established case-law, the acts or decisions which may be the subject of an action under Article 173 of the EEC Treaty are measures producing binding legal effects of such a nature as to affect the interests of the applicant by bringing about a significant change in his legal position (judgment in Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9).

9 However, the referendum organized by the Commission is only an internal measure creating no obligation for any person whatever to participate in the referendum. That measure could not therefore have had a direct and immediate consequence on the applicant' s legal situation.

10 It must therefore be declared that the claim for annulment of the TAO/AFI is not directed against an act adversely affecting that body and that it must therefore be dismissed as inadmissible.

The claim for recognition of the right of TAO/AFI to continue the negotiations

11 TAO/AFI seeks an order from the Court requiring the Commission to continue the negotiations with the trade unions and professional organizations, in accordance with the procedure laid down by the Council Decision establishing a concertation procedure which was adopted at its 713th meeting, held on 22 and 23 June 1981.

12 According to established case-law, the Court of Justice may not direct orders at the Community administration. It follows that the second head of claim of TAO/AFI must be declared inadmissible.

The claim for damages

13 Although the applicant asks for the Commission to be ordered to pay to it the sum of BFR 1 000 000 as damages, it has not indicated in its application, as Article 38(1)(c) of the Rules of Procedure requires, the pleas in law on which it intended to rely in support of its claims nor, in particular, the nature of the harm which it has allegedly suffered or the event giving rise to that harm.

14 It follows that the claim for damages of TAO/AFI must be dismissed as inadmissible.

Costs

15 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicant has failed in its action, it must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby orders:

1. The action is dismissed as inadmissible.

2. The applicant is ordered to pay the costs.

Luxembourg, 3 December 1992