Judgment — ECLI:EU:F:2014:264
Date: 2014-12-11
Language of the case: French
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - inadmissible

Summary 1. Actions brought by officials — Staff Committee — Elections — Jurisdiction of the Courts of the European Union — Limits (Art. 270 TFEU; Staff Regulations, Arts 90 and 91) 2. Officials — Representation — Staff Committee — Elections — Regularity — Institutions’ obligation to ensure the regularity of elections — Scope (Staff Regulations, Arts 9(2), 90 and 91) 3. Actions brought by officials — Act adversely affecting an official — Meaning — Decision of the appointing authority intended to ensure the regularity of the elections and of the subsequent composition of the institution’s staff representation bodies — Included — Conditions (Art. 270 TFEU; Staff Regulations, Arts 90 and 91) 4. Actions brought by officials — Staff Committee — Elections — Decision of the Committee of Tellers — Action brought against the institution concerned without going through the pre-litigation procedure in accordance with the Staff Regulations — Inadmissibility (Art. 270 TFEU; Staff Regulations, Art. 90(2) and Annex II, Art. 1, second para.) 5. Judicial proceedings — Costs — To whom chargeable — Taking into account of requirements of fairness — Order for the successful party to pay some of the costs (Rules of Procedure of the Civil Service Tribunal, Arts. 101 and 102(2)) 1. The Courts of the European Union have jurisdiction in electoral disputes concerning (amongst other things) Staff Committees, under the general provisions relating to actions brought by officials which are laid down by the Staff Regulations pursuant to Article 270 TFEU. The judicial review is carried out in connection with actions brought against the institution concerned regarding the acts or omissions of the appointing authority arising out of the exercise of its administrative supervisory function in such matters. However, the Courts of the European Union have jurisdiction only in regard to acts of the appointing authority having adverse effect. More specifically, in electoral disputes concerning the appointment of Staff Committees, acts adopted by a body (whether established under the Staff Regulations or not) which does not hold powers delegated by the appointing authority, such as a Staff Committee, an electoral office or a Committee of Tellers, are not, in principle and strictly speaking, acts emanating from the authority which may, on that ground, be challenged in an autonomous action before the Courts of the European Union. It is only indirectly, if at all, that the Courts of the European Union, in the context of their judicial review of the acts or omissions of the appointing authority with regard to its obligation to ensure the regularity of elections, may consider, having regard to the consistency of the series of acts which comprise the election and the complex procedure of which they form part, whether the acts adopted by a Committee of Tellers, which are closely linked to the contested decision of the appointing authority, are vitiated by illegality. Any such judicial review is dependent, however, on a decision having been taken by the appointing authority. (see paras 41, 46, 47) See: Judgments in de Dapper and Others v Parliament, 54/75, EU:C:1976:127, paras 8 and 24; Venus and Obert v Commission and Council, 783/79 and 786/79, EU:C:1981:245, para. 22, and Diezler and Others v ESC, 146/85 and 431/85, EU:C:1987:457, para. 5 Judgments in Grynberg and Hall v Commission, T‑534/93, EU:T:1994:86, para. 20; Marx Esser and del Amo Martinez v Parliament, T‑182/94, EU:T:1996:130, para. 37, and Chew v Commission, T‑28/96, EU:T:1997:97, para. 20 Judgment in Milella and Campanella v Commission, F‑71/05, EU:F:2007:184, paras 42 and 43 2. The EU institutions are under a duty to ensure that their officials have complete freedom to choose their representatives in accordance with the established rules. Accordingly, they are under a duty to prevent or censure manifest irregularities on the part of the bodies responsible for holding elections, such as Staff Committees or Committees of Tellers. In this regard, the administration may be under a duty to adopt binding decisions. Also, and in any event, it remains under a duty to settle complaints which may be submitted to it in this connection under the procedure laid down by Articles 90 and 91 of the Staff Regulations. The supervisory function performed by the administration in electoral matters is not confined to a right to intervene in situations where the bodies established under the Staff Regulations or administrative bodies in charge of organising elections have already infringed, or are actually threatening to disregard, the electoral rules. On the contrary, the institutions have a right to intervene of their own volition if they have doubts as to the regularity of an election, a right which extends to intervening in order to take preventive measures. (see paras 42-44) See: Judgment in de Dapper and Others v Parliament, EU:C:1976:127, paras 22 and 23 Judgment in Maindiaux and Others v ESC, T‑28/89, EU:T:1990:18, paras 32 and 71 Judgment in Milella and Campanella v Commission, EU:F:2007:184, para. 71 3. Acts adopted in connection with the duty incumbent on any EU institution to ensure the regularity of elections to bodies representing staff, and of the subsequent composition of those bodies are decisions of the relevant institution, in relation to which officials and other members of staff can make a complaint directly to the appointing authority without being required to observe the procedure laid down in Article 90(1) of the Staff Regulations and request the appointing authority, in advance, to take a decision relating to them. The Courts of the European Union also recognise the possibility of direct action being taken by means of a complaint under Article 90(2) of the Staff Regulations, even where the appointing authority has not yet adopted a decision (express or implied) not to review the regularity of a decision adopted by a body which is responsible for holding elections, provided that the complaint specifies the measures imposed by the Staff Regulations which the appointing authority has allegedly failed to take. While that is so, the submission of a complaint under Article 90(2) of the Staff Regulations remains, in any event, a necessary precondition of any action under Article 270 TFEU and Article 91 of the Staff Regulations in electoral disputes concerning the appointment of Staff Committees of EU institutions. (see paras 49-51) See: Judgments in de Dapper and Others v Parliament, EU:C:1976:127, para. 23, and Diezler and Others v ESC, EU:C:1987:457, para. 7 Judgment in White v Commission, T‑65/91, EU:T:1994:3, paras 91 and 92 Judgment in Milella and Campanella v Commission, EU:F:2007:184, para. 54, and order in Klar and Fernandez Fernandez v Commission, F‑114/13, EU:F:2014:192, paras 58 and 59, on appeal before the General Court of the European Union, Case T‑665/14 P An action brought against an EU institution, but concerning the legality of Staff Committee election results declared by the Committee of Tellers and not a decision of the appointing authority, is inadmissible. If the Committee of Tellers rejects a complaint by the applicant under its own rules, it is open to the applicant to seize the appointing authority in order for it to adopt a decision as to the regularity of the staff elections, or indeed for it to annul the results of those elections, and in the event of an express or implied refusal, to make a complaint pursuant to Article 90(2) of the Staff Regulations. It is also open to the applicant to submit a complaint, within the meaning of Article 90(2) of the Staff Regulations, directly to the appointing authority. In that regard, the obligation (which applies equally in electoral matters) to submit a complaint prior to bringing any action under Article 270 TFEU concerning an act or omission of the appointing authority in connection with its duty to review the regularity of elections to the Staff Committee, cannot be disregarded on the ground that a body, here the Committee of Tellers, has power, by virtue of a text adopted by the Staff Committee and the staff of the institution itself, to adjudicate on disputes connected with the conduct of the elections and their results. First, neither General Meetings of officials nor bodies established by the Staff Regulations, such as Staff Committees, are competent, under the ‘conditions for election to the Staff Committee’ adopted by them, to derogate from an express rule in the Staff Regulations, in this case Article 90(2). Secondly, the decision issued by the Committee of Tellers simply confirms, or as the case may be, invalidates the results of the elections. On that basis, the Tribunal has no power to rule directly, in the absence of any decision of the appointing authority of the defendant institution, on the legality of a decision of the Committee of Tellers. By contrast, the decision adopted by the appointing authority when ruling on a complaint brought under Article 90(2) of the Staff Regulations in connection with an electoral matter, made in light of the results of the elections and with regard to its duty to ensure that its officials and other members of staff have complete freedom to choose their representatives in accordance with the established rules, is one of whether to intervene or to refrain from intervening in the electoral process. It is in those circumstances that, in electoral matters, the Tribunal has jurisdiction to review the legality of a decision of the appointing authority in order to determine (amongst other things) whether ‘[the appointing authority] has failed to adopt a measure prescribed by the Staff Regulations’ within the meaning of the first paragraph of Article 90(2) of those regulations. (see paras 54, 57, 60-63) See: Judgment in de Dapper and Others v Parliament, EU:C:1976:127, paras 28 and 29 Judgments in Maindiaux and Others v ESC, EU:T:1990:18, para. 45; Grynberg and Hall v Commission, EU:T:1994:86, para. 23; Schneider v Commission, T‑54/92, EU:T:1994:283, para. 19, and Marx Esser and del Amo Martinez v Parliament, EU:T:1996:130, paras 17 to 22 and 33 Judgment in Loukakis and Others v Parliament, F‑82/11, EU:F:2013:139, paras 25, 29 and 46 4. The provisions of Article 102(2) of the Rules of Procedure of the Civil Service Tribunal, concerning the possibility of ordering a successful party to bear his own costs and to pay the costs incurred by the other party, should be applied where the wording of the internal provisions at issue may suggest that a direct action before the EU judicature will be admissible and where the institution concerned has acknowledged this ambiguity, but has decided not to intervene to amend that wording. (see paras 67, 68)