Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. One year after the Court's judgment on the places of work of the European Parliament, given on 10 February 1983 (Case 230/81, Luxembourg ν Parliament, [1983] ECR 255), the Court is once again called upon to rule on that question. As on the previous occasion, it is the Grand Duchy of Luxembourg which asks the Court to do so. That State has instituted proceedings against a measure adopted by the Parliament which confirms the wish of that institution to change its staff's place of work so as to improve the functioning of the institution. In this Opinion I shall evaluate that measure from a legal point of view. However, I am compelled to point out that it has a comprehensible and quite serious political basis; the persistent inertia of the governments in carrying out their obligation to determine the seat of the Parliament and the growing organizational difficulties that this unwillingness to act causes.

2. The Luxembourg Government's argument is straightforward. There can be no doubt, it contends, that the Parliament, by virtue of its powers of internal organization, can take the measures necessary to ensure the efficiency of its own work. However, it is no less certain, as the Court itself confirmed in its judgment of 10 February 1983, that such measures must respect the powers of the States, namely the power to determine the seat of the institutions and, until that has been done, the power to designate the provisional places of work. The contested resolution, however, excludes Luxembourg from the list of those places (which is reduced to Brussels and Strasbourg alone: see in particular points D and Ľ). Furthermore, by providing for the division of the staff of the Secretariat between Strasbourg and Brussels (see point 1 (b)), the resolution also implies that Luxembourg will cease to be the seat of the Secretariat.

3. The first argument seems to me to be fairly weak. Not that its premise is incorrect: in the Assembly reservations were indeed expressed concerning the method used to submit the resolution, and the relevant committee has twice been asked to give its opinion as to the correctness of the method followed. I do not consider, however, that such events affect the definitive character of the act or, therefore, its validity. As the applicant government has rightly pointed out, the opinion of the committee is not limited to the case in point, but is general and abstract. As a rule, therefore, it can in no way affect the proceedings in the context of which it was requested.

4. The argument that the contested act is not in the nature of a decision is quite a different matter. In my Opinion in Case 230/81, delivered on 7 December 1982, I expressed the view that the resolution known as the Žagari Report contained a genuine decision to transfer officials from Luxembourg to Strasbourg and, above all, to Brussels. I concluded that, although the resolution instructed the relevant bodies of the Parliament to determine the measures necessary for that purpose, that task was no more than the implementation of a measure already capable of producing external legal effects (point 23). The Court did not adopt that view and deduced from its refusal that the act could not be challenged. The measure, it pointed out, did not embody what could properly be described as a decision on specific measures or in particular upon a transfer of staff. The decision was left for subsequent consideration and — and I would emphasize this important point — its adoption would be possible only after the rights and obligations of the governments with regard to the determination of the seats of the institutions, on the one hand, and the power of the Parliament to determine its own internal organization, on the other, had been taken into account (Point 57).

5. That examination calls first of all for an attentive reading of the contested text, which is divided into a preamble, an operative part and a final part dealing with the specific measures to be taken in implementation of the operative part. The preamble, to which I refer principally for the light it throws on the other two parts, begins by referring to the Žagari Report of 7 July 1981 (but not, I regret to say, to the judgment in which the Court reviewed that report and in substance recognized its legality). The preamble then makes three assertions:

6. The first of these is the final part of the resolution. It is true that the resolution expresses a wish to divide up the officials between the capital of Belgium and the regional capital of Alsace; however, it then (at point 2) instructs the Bureau to institute structural changes within the administration. In order for the resolution to take effect, therefore, the Bureau must adopt a series of practical measures, some being of a general character (such as the restructuring of services), others — taken as a consequence of the former — being of a specific character (transfer of individual officials).

7. The provisions of the Parliament's Rules of Procedures concerning staff management lead to the same conclusion. Under Rule 113 (2), it is the Secretary General who heads the staff, while the Bureau determines its composition and organization. Under Rule 113 (3) it is also the Bureau which decides, after consulting the appropriate committee of Parliament, ... the number of officials and other servants and lays down regulations relating to their adminstrative and financial situation.

8. For all the foregoing reasons, I propose that the Court dismiss the action brought by the Grand Duchy of Luxembourg against the European Parliament by an application lodged at the Registry on 10 June 1983.

1 Translated from the Italian.