Report for the Hearing delivered in Joined Cases 146 and 431/85
I — Facts and procedure
1. By Decision No 1896/75A of 28 July 1975 the Bureau of the Economic and Social Committee (hereinafter referred to as the ESC) adopted the provisions governing the composition and procedures of the Staff Committee of that institution.
2. Case 146/85: on 22 April 1985 the fourth applicant, Mr Helmut Müllers, acting on behalf of his trade union, the ESC section of the FFPE (European Civil Service Federation), submitted to the Chairman of the ESC a request to the effect that the amendment of the electoral rules was unlawful because the staff meeting which adopted it had been held the day before the term of office of the outgoing Staff Committee had expired, whereas it should have been held at the latest one month prior thereto, in accordance with Article 5 of Decision No 1896/75A, quoted above. The applicant accordingly requested the Chairman of the ESC to draw the attention of the Chairman of the Election Board, who was appointed by the general meeting of 19 April 1985, to the fact that the elections to the Staff Committee for the years 1985-87 should take place in accordance with the prevailing electoral system as contained in the Rules for Election to the Staff Committee, Document CP 153/83 of 4 March 1983.
3. Case 431/85 : the five applicants, acting as officials of the ESC and thus entitled to vote and stand for election to the Staff Committee, and of whom the first, third and fifth were candidates for the elections due on 14 June 1985, lodged at the Secretariat of the ESC on 18 July 1985 a complaint addressed to the Chairman, Secretary-General and appointing authority of the ESC; the complaint sought a declaration that the electoral rules adopted on 19 April 1985 were null and void, and it asked that the Chairman of the Election Board should be informed that they could not be applied to the elections to the Staff Committee. By a memorandum of 29 October 1985, notified to the complainants on 6 November 1985, the complaint was rejected as inadmissible on the ground that the administrative procedure thereby commenced duplicated the administrative procedure and ensuing action before the Court in Case 146/85.
4. By order of 25 June 1986 the Court ordered that the two cases be joined for the purposes of the oral procedure and the final judgment.
II — Conclusions of the parties
A — Case 146/85
5. The applicants claim that the Court should:
6. The Economic and Social Committee claims that the Court should:
7. The interveners claim that the Court should:
B — Case 431/85
8. The applicants claim that the Court should:
9. The Economic and Social Committee claims that the Court should:
10. The interveners claim that the Court should:
III — Submissions and arguments of the parties
A — Case 146/85
Admissibility of the application
The ESC and interveners raised three points on the admissibility of the application.
11. The first question regarding admissibility is concerned with the question whether the Court has jurisdiction to review the legality of each of the contested steps, namely:
12. The applicants maintain that the Court generally has jurisdiction in such matters, as is shown by the judgment of 29 September 1976 delivered in Case 54/75 De Dapper and Others v Parliament [1976] ECR 1381, in which the Court recognized the admissibility of an application pursuant to Article 179 of the Treaty, relating to an electoral dispute with regard to the appointment of the Staff Committee of an institution.
13. The ESC concedes that the application is admissible in so far as it is directed against the Chairman's letter of refusal of 24 April 1985. It also concedes that the application may contest the decision of the general meeting of 19 April 1985, but only in so far as it asks the Court to censure the infringement of the one-month rule under Article 5 of Decision No 18 96/75A of the Bureau of the ESC, given that the application of the fourth applicant, Mr Müllers, dealt only with that point. According to the ESC, the second paragraph of Article 1 of Annex II to the Staff Regulations authorizes the staff meeting to lay down as it sees fit the conditions governing the election of the Staff Committee, subject only to the observance of certain imperative rules such as the secrecy of the ballot and the need to represent the various categories of official and obtain a quorum of voters; a review of those matters may therefore deal only with infringements of express and specific provisions.
14. The interveners, although intervening in favour of the conclusions of the ESC — which accepts the admissibility of the action against the decision of the general meeting of staff on 19 April 1985 — claim that their conclusions differ on this point and do not accept the admissibility of the action except where it is directed against the Chairman's refusal, on 24 April 1985, to accede to the request of the fourth applicant, Mr Müllers, which they claim to be the only step on the part of the appointing authority which gave grounds for complaint.
15. The second question regarding admissibility concerns the procedural requirements surrounding a prior complaint, in the sense that it needs to be established in this case:
16. The applicants maintain that the submission of a prior complaint is, in the circumstances, unnecessary because:
17. The applicants argue that, in any event, Mr Müllers' letter is a complaint for the benefit not only of himself but also of the other applicants, because he had claimed to be acting on behalf of his trade union in order to demonstrate that he was not doing so in a merely personal capacity.
18. The ESC contends that the procedural prerequisite of an official complaint is mandatory according to the De Dapper judgment (paragraph 23 of the decision) and that the only possible exception is in the case of selection board decisions (judgment of 15 January 1985 in Case 168/83 Pasquali-Gherardi v Parliament [1985] ECR 83). Consequently, it was only the fourth applicant who satisfied that condition, if his letter of 19 April 1985 were to be accepted as a complaint on his own behalf.
19. The interveners take the view that, in so far as the applicants failed to lodge a complaint, their action is inadmissible. As far as the fourth applicant's letter of 19 April 1985 is concerned, inasmuch as it called upon the President of the ESC to intervene in the manner proposed it could be described as a request under Article 90 (1) of the Staff Regulations but not as a complaint under Article 90 (2) thereof.
20. The applicants further maintain that the letter, even if viewed as a complaint, was submitted solely on behalf of a trade union which, being a professional organization, is not permitted to bring an action under Articles 90 and 91 of the Staff Regulations (judgment of 18 March 1975 in Case 72/74 Union syndicale v Council [1975] ECR 401).
21. The third question regarding admissibility concerns the interest of the applicants in bringing the proceedings.
22. The applicants maintain that they are entitled to assert the interest of every voter in ensuring that the electoral system applied is in conformity with the provisions in force and is not amended in an illegal manner. They take the view that in this type of case no applicant — even a candidate — may claim an interest different from that of other voters. A political and moral interest, held in common with the ordinary voters and members of the general meeting, should thus make the applicants' action admissible. There was, moreover, the interest arising from their being candidates for the Staff Committee.
23. The ESC contends that the fact of being an ordinary voter does not confer a sufficient interest, with the result that only those applicants who were candidates for election to the Staff Committee — Mr Diezler, Mr Fink-Jensen and Mr Ricci — could be permitted to bring an action.
24. The interveners maintain that it is not the fact of being a voter which confers sufficient interest in bringing an action, but only that of being a candidate for election. Consequently, Mr Müllers, who was not a candidate for election to the Staff Committee, could not be permitted to bring an action even if it were conceded that he fulfilled the other conditions of admissibility.
Substance
25. The applicants set out four submissions.
First argument
26. The applicants base their first submission on infringement of the first paragraph of Article 5 of Decision No 1896/75A, cited above. According to the applicants, the general meeting on 19 April 1985 was unlawful on the ground that it took place on the day before the date on which the term of office of the outgoing Staff Committee expired (20 April 1985), rather than one month beforehand. They take the view that the postponement of the elections so as to ensure that one month elapsed between the establishment of the electoral system and the holding of elections to the Staff Committee was not sufficient. The relevant date as far as the lawfulness of the general meeting on 19 April 1985 was concerned could only be 20 April 1985, the expiry date of the outgoing committee's two-year term of office, which could not be extended by the expedient of postponing the date of the election so as to ensure an interval of a month and by keeping the outgoing committee in office to deal with business in hand until the incoming committee took office. This continuation of its functions was based on Article 5 of Decision No 1896/75A, whereas the term of office was entirely based on Article 1 of Annex II to the Staff Regulations. Those two statutory authorities should not be interchangeable, otherwise it would be permissible to postpone elections several times over, and to extend the functions of an outgoing Staff Committee by virtue of successive amendments to the electoral system.
27. The ESC takes the view that postponement of the elections ensured compliance with both the letter and the spirit of the requirements under Article 5, the purpose of which was to enable officials to be informed about the electoral system and to understand it properly.
28. The interveners refer to the arguments of the ESC. They add that the meeting held on 19 April 1985 was not a new meeting but the continuation of the meeting already held on 25 March 1985, and that in any event an infringement of Article 5 carries no penalty.
Second submission
29. The applicants maintain that the meeting on 19 April 1985 was unlawful for lack of a quorum; only 120 out of 420 members voted. They infer the duty to constitute a quorum, first, from the obligation laid down by the Court in the De Dapper judgment to observe democratic rules and, secondly, from the reference in the same judgment to the European Parliament's internal arrangements, under which a quorum is required. Finally, the principle arises by analogy with the fifth paragraph of Article 1 of Annex II to the Staff Regulations, which requires a quorum of a staff meeting which elects the Staff Committee.
30. The ESC contends that no requirement regarding the constitution of a quorum arises from any obligation which applies in the present circumstances. The absence of such a requirement may even be inferred by reasoning a contrario, inasmuch as the obligation is expressly laid down only in the case of a meeting which elects the Staff Committee. Furthermore, the obligation may not be inferred from a general principle of public law, since the institution in question cannot be scrutinized except within the limits set out in the Staff Regulations, to which the De Dapper judgment refers exclusively (paragraphs 16 to 18 of the decision).
31. The interveners point out that the general meeting of staff which adopted the previous electoral system consisted of no more than one-fifth of the officials, without there having been any protests as a result.
Third submission
32. The third submission is based on the fact that the voting of the general meeting on 19 April 1985 took place without the voters' having been duly informed in writing of the content of the text put to the vote. In their application, the applicants refer to the following points:
33. The ESC observes that, in their reply, the applicants amend their submission; this is contrary to Article 42 (2) of the Rules of Procedure, and the submission is therefore inadmissible. Turning to the facts, the ESC claims that according to its information the staff was duly informed of the questions laid before the general meeting.
Fourth submission
34. In their fourth submission, the applicants maintain that the new electoral arrangements, by their excessive emphasis on an absolute majority, serve to favour unduly the leading groups who, once assured of an absolute majority (50 to 66%), secure all the seats on the Staff Committee, thereby eliminating the others. They take the view that an effect such as that is contrary to the first paragraph of Article 9 (3) of the Staff Regulations, which seeks to ensure that the staff is represented within the Staff Committee.
35. The ESC considers the fourth submission to be inadmissible because it relates to the merits of the electoral system, which are a matter left to the absolute discretion of a staff meeting. As to the substance of the argument, the ESC observes that the electoral system itself, whether based on an absolute majority, on proportional representation or on a hybrid scheme, is not prescribed by the Staff Regulations, so that the system adopted is lawful.
Replies of the parties to questions put by the Court
36. In reply to the question whether the applicants are members of the trade union on whose behalf the fourth applicant, Mr Müllers, sent the letter of 22 April 1985 to the Chairman of the ESC,
37. In reply to the question as to which of the applicants were candidates for the Staff Committee,
38. In reply to the question as to the date originally fixed for the elections to the Staff Committee for the period from 1985 to 1987,
39. In reply to the question as to the total membership of the staff of the ESC and the number of members who were present (a) at the start of the meeting of 19 April 1985, and (b) at the time of voting,
B — Case 431/85
Admissibility of the application
40. The ESC contends that the application in Case 431/85 is inadmissible on the grounds of lis pendens, since the second action is brought by the same applicants and has the same purpose, the same conclusions and the same argument — that the election rules in dispute should be declared void — as the action in Case 146/85. According to the ESC the fact that the applicants submitted a complaint under Article 90 of the Staff Regulations prior to lodging the application is insufficient to differentiate this action from Case 146/85.
41. The applicants maintain that the objection by the ESC that their prior complaint is inadmissible should be rejected.
42. The interveners maintain that the application in Case 431/85 is inadmissible on the ground of lis pendens, which could only have been avoided if, prior to commencing the action, the applicants had discontinued the proceedings in Case 146/85. That being so, the applicants claim that declaring the action admissible would be tantamount to admitting new claims and submissions during the course of the proceedings, contrary to Articles 38 and 42 of the Rules of Procedure.
Substance
First submission
43. The first submission is the same as that raised in Case 146/85, and so — in their essentials — are the parties' exposition and reasoning.
Second submission
44. The second submission is the same as that raised in Case 146/85 and so — in their essentials — are the parties' exposition and reasoning. None the less, the interveners observe that it is not based on any legal text. They also point out that the conditions governing the election of the Staff Committee are laid down by a staff meeting at its absolute discretion, and consequently the ESC is not empowered to criticize the decisions of the meeting on that point.
Third submission
45. The applicants' third submission is the same as their third submission in Case 146/85 as reformulated in their reply in that case.
46. Lastly, the ESC contends that the submission is unsubstantiated because the applicants' assertions are not established. It takes the view that, as the institution in question, it was in any event not competent to intervene.
Third submission, as amended
47. The applicants derive this submission from the fact that the voters at the meeting on 19 April 1985 were misled by the statements made by the author of the text put to the vote, when he spoke of the possibility and the implications of abstaining from voting for the representatives of certain categories of officials. They explain that whereas the printed ballot paper used at the staff meeting made no mention of abstention and whereas, pursuant to the new rules, any mark designed to express an abstention would have invalidated the vote, the author of the rules (and Chairman of the Election Board) assured staff that an abstention could be counted as a vote. That statement, they claim, had induced many people to vote in favour of the proposals setting up a new electoral system and thereby brought about its adoption by 59 votes to 44, with 11 abstentions.
48. The ESC contends that the submission duplicates the third submission originally put forward and must be rejected, since the applicants' assertion was disputed and the facts alleged did not in any case allow it, as the institution concerned, to intervene.
49. The interveners observe that in the course of the meeting in question, neither the applicants nor the other participants expressed any remark or objection as to the implications of the decision put to the vote, and neither did the complainant and applicant Mr Müllers in his complaint of 22 April 1985.
Fourth submission
50. The fourth submission is the same as that raised in Case 146/85, and so — in their essentials — are the exposition and reasoning of the parties.
Fifth submission
51. The applicants observe that the electoral system adopted on 19 April 1985 obliges electors, who hold seven votes, to cast one vote for each category of official or other servant, with the result that they hold six blocked votes and a single free vote, since a refusal to vote for one of the candidates in each category renders the entire vote invalid. The system thus conflicts with the fundamental requirement of the Staff Regulations, namely the expression of opinion by the staff in accordance with the first paragraph of Article 9 (3), which can only be satisfied by a system approximating as closely as possible to proportional representation.
52. The ESC refers to the question asked by the applicants, as to whether the fourth paragraph of Article 1 of Annex II to the Staff Regulations means that all categories of official and other servants must necessarily be represented within the Staff Committee, and observes that this point was confirmed by the judgment of the Court of 10 July 1986 in Case 270/84 Licata v ESC [1986] ECR 2305, which dismissed the application of an official who had to leave the Staff Committee to which she had been elected as a member of the local staff.
Sixth submission
53. In their reply, the applicants put forward a new submission based on further irregularities which allegedly vitiated the voting at the meeting on 19 April 1985. Those irregularities were that: (a) there was no list of electors, (b) the vote was taken on a show of hands, and (c) those present were able to take part in the voting without there being any checks on whether their status under the Staff Regulations entitled them to do so. They maintain that they decided to put forward that submission as a result of the questions which the Court requested them to answer, and claim that it was admissible pursuant to Article 42 of the Rules of Procedure. They add that in any case the submission, which is contained in the foregoing elements of fact and law, is implicit in the third submission (as amended), discussed above.
54. The ESC refuses to accept the admissibility of the new submission, and denies that it was implicitly contained in elements of fact and law already considered.
1 Language of the Case: French.