OPINION OF MR REISCHL — CASE 175/73 UNION SYNDICALE, MASSA AND KORTNER v COUNCIL

Mr President,

Members of the Court

The object of this application is the annulment of acts of the Council, by which two officials were appointed to posts of administrators. It has been brought by three applicants; with regard to the admissibility of the application, applicants Nos 2 and 3 present no special problem: they are officials of the Council and display a legitimate interest in the cancellation of appointments which adversely affected their status. Applicant No 1 on the other hand is the Amalgamated European Public Service Union (Union Syndicale), a union composed of officials and other servants of the European institutions and other European organisations located in Brussels.

The fact that a union is here appearing as applicant has caused the Council to put in a plea of inadmissibility, lodged on 27 October 1973, and to submit that the Court should give a ruling on this matter before considering the merits, pursuant to Article 91 (4) of the Rules of Procedure.

By Order of 13 February 1974 the First Chamber of the Court referred the case to a plenary session of the Court of Justice, pursuant to Article 95 (2) of the Rules of Procedure. At that plenary session, the Court decided to rule on the plea before considering the merits and without any preparatory inquiry.

The parties made their oral observations at the hearing on 21 March 1974, and the case now awaits judgment.

I — Scope of the plea

We must first examine the scope of the plea of inadmissibility raised by the Council. The latter requests in fact that the application should be declared inadmissible not only insofar as it is brought by the Union Syndicale, whose right of action in proceedings of this kind is, as we shall see, open to doubt. The plea is also directed against the applications by the two officials, insofar as the latter are associated with the application in their capacities as officers or members of the Union Syndicale. The plea should not be taken wholly seriously on this point. The two applicants have in fact made it quite clear that they have made and are pursuing their applications in their own names, on their own behalf and for the protection of their own interests. They may well be members, even officers, of the Union Syndicale, or of any other association — that has no significance here; the fact is that they would have been able to take part in the competition procedure for the filling of the posts in issue, if such a competition had been held. There can be no doubt as to the legitimate interest of both officials in their application or as to their right of appeal under Article 91 of the Staff Regulations, since they have lodged complaints pursuant to Article 90.

II — Discussion of the plea

1. We must first consider what the Union Syndicale in fact is, and what it represents according to the Staff Regulations of officials of the European Communities.

2. In the present case it has to be decided whether unions have the right to be party to legal proceedings before the Court. In reaching this decision the Court must carefully distinguish between the right to appear as an intervener and the right to bring the application.

It is my opinion, on the basis of the foregoing, that:

1 Translated from the German.