JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)
6 May 2009
Case F-137/07
Giovanni Sergio and Others
v
Commission of the European Communities
(Civil service – Rights and obligations – Freedom of association – Protocol of Agreement between the Commission and the trade union or professional organisations – Individual decisions on secondment/release from service based on a protocol – Act adversely affecting an official – Locus standi – Official acting on his own account and not on the account of a trade union – Inadmissibility – Notification of the rejection of the complaint to the applicants’ lawyer – Starting point for the time-limit for bringing an action)
Application: brought under Articles 236 EC and 152 EA, in which Mr Sergio and four other officials of the Commission seek, first, annulment
of the Protocol of Agreement between the trade union or professional organisations and the Commission’s Directorate General
for Personnel and Administration concerning the allocation of resources for the representation of the staff for 2006, second,
annulment of the individual release from service decisions adopted in favour of the representatives of the Alliance and Fédération
de la fonction publique européenne trade unions on the basis of the 2006 Protocol and the rules on the representativeness
of the trade union or professional organisations, and third, annulment of the decision of 14 November 2006 of the Director
General of Personnel and Administration reinstating Mr Marquez-Garcia in his directorate general of origin; furthermore, they
seek an order for the Commission to pay each of them a symbolic EUR 1 as compensation for the non-material and political harm
suffered as representatives of the Union syndicale and the non-material harm suffered and harm caused to their careers as
officials or agents.
Held: The action is dismissed. The applicants are ordered to pay the costs.
Summary
1.      Officials – Actions – Act adversely affecting an official – Definition – Agreement between an institution and the trade union
or professional organisations concerning the granting of benefits to those organisations on the basis of their representativeness
– Not included – Decision refusing an official designated by one of those organisations under the agreement the benefit of
a secondment for trade union purposes – Included
(Arts 230 EC and 236 EC; Staff Regulations, Arts 10c, 24b, 90 and 91)
2.      Officials – Rights and obligations – Trade union law – Limits – Administration’s obligation to grant trade union representatives
lasting and established exemptions from carrying out their work in their departments – None
(Staff Regulations, Art. 24b)
3.      Officials – Actions – Act adversely affecting an official – Action for annulment brought by a member of a trade union or professional
organisation – Claim for annulment of decisions awarding ‘secondments for trade union purposes’ to members of another organisation
(Staff Regulations, Arts 24b, 90 and 91)
4.      Officials – Actions – Interest in bringing proceedings – Administration’s circumscribed powers – Decision to reinstate in
his department an official who has been on secondment for trade union purposes but is no longer designated by his trade union
– Inadmissibility
(Staff Regulations, Art. 91)
5.      Officials – Actions – Time-limits – Point from which time starts to run – Complaint lodged by a lawyer on behalf of a number
of officials
(Statute of the Court of Justice, Art. 19, third and fourth paras., and Annex I, Art. 7(1); Staff Regulations, Art. 90(2))
1.      An agreement between an institution and the trade union and professional organisations which grants benefits to those organisations
on the basis of their representativeness, such as possible secondments for trade union purposes, the granting of loans and
the services of external staff, is intended only to govern collective labour relations between the administration and those
organisations, in the sense that it does not fall within the sphere of individual working relations between the institution
and the official, but in the context of relations between that institution and those organisations. While such an agreement
is therefore capable of harming the interests of one of those organisations, it is not capable of affecting the individual
situation of officials belonging to it, particularly the individual exercise of one of the trade union rights granted pursuant
to Article 24b of the Staff Regulations or of a right resulting from an agreement reached between the institution and the
trade union and professional organisations.
Consequently, an official acting in his individual capacity is not directly affected by such an agreement. Only the trade
union and professional organisations are individually affected in this respect and are therefore able to use the remedies
available to them on the basis of Article 230 EC to protect their own interests.
It is only where the weakened position of
one of those organisations resulting from such an agreement might be regarded, in the light of the severity of its effects,
as depriving the members of that organisation of the normal exercise of their trade union rights that officials acting in
an individual capacity might claim an interest in bringing proceedings on the basis of the weakened position of the organisation
to which they belong.
However, if one of those organisations has been granted a secondment by such an agreement and has designated a named official
to receive that secondment, any decision by the appointing authority refusing to allow that official to receive that secondment
would adversely affect the official and could then be the subject of an action for annulment brought by the official on the
basis of Article 236 EC, which is not the case with the agreement itself.
(see paras 51, 52, 56, 79, 81-84)
See:
T-34/03 Hecq v Commission [2004] ECR-SC I‑A‑143 and II‑639, para. 46
2.      Although freedom to engage in trade union activities constitutes a general principle of labour law which means in particular
that trade union representatives must be granted time off work in order to participate in consultation with the institutions,
it cannot be extended so as to require Community institutions to grant trade union representatives lasting and established
exemptions from carrying out their work in their departments in order to devote themselves to the work of representing the
staff. The possibility for an official to rely on an individual right to a secondment for trade union purposes enabling him
to dispute a measure granting such secondments thus depends on specific provisions providing for the existence of such a right.
(see paras 61-62)
3.      Claims submitted in an action brought by officials belonging to a trade union or professional organisation seeking the annulment
of decisions granting secondments for trade union purposes to other officials or staff members belonging to another of those
organisations must be dismissed as inadmissible. Since such decisions are not addressed to the applicants, they do not bring
about a clear change in their own situation as officials or staff members. Furthermore, such decisions do not constitute a
restriction on the individual exercise of their freedom to engage in trade union activities since, although they have the
effect of restricting the possibilities for the applicants to obtain a secondment for trade union purposes, their object is
not to exclude them on principle from the benefit of any entitlement to such a secondment. Consequently, those decisions do
not affect, directly and immediately, the interests of the applicants by bringing about a distinct change in their legal situation
as officials or staff members.
(see paras 92-95)
4.      An institution is obliged to reinstate in his department an official who is no longer designated by a trade union organisation
to receive one of the secondments granted to it under a protocol concerning the allocation of resources among the trade union
and professional organisations. Consequently, all pleas in law against such a decision to reinstate that official are inadmissible
in so far as the conditions circumscribing the administration’s powers – that is, the trade union’s failure to designate the
official in question for a secondment granted to it – are satisfied. In that case, the official has no legitimate interest
in seeking to have the contested decision annulled, since such annulment could only give rise to another decision identical
in substance to the decision annulled.
(see paras 103-104)
See:
T-99/95 Stott v Commission [1996] ECR II‑2227, paras 31 and 32
5.      Where it is clear that a complaint has been lodged by a lawyer on behalf of officials or other staff, the administration may
rightly consider that the decision taken in response to that complaint should be addressed to him. If the administration has
not received any instructions to the contrary before notifying its reply, that notification, addressed to the lawyer, is then
deemed to constitute notification to the officials or other staff he represents and thus starts running the three-month time-limit
for appeal provided for in Article 91(2) of the Staff Regulations.
In that respect, where a complaint is lodged by a lawyer on behalf of a number of officials or other staff, the institution’s
notification of its reply to that lawyer guarantees legal certainty for the institution but also for the applicants’ lawyer,
who then has a single date from which to calculate the time-limit for bringing any appeal on behalf of the officials or other
staff he represents.
In order to claim that their appeal is not out of time, the applicants cannot reasonably rely on the provisions of the lawyer’s
national legislation relating to his authority, according to which the fact that a lawyer has authority to submit a procedural
document, in particular an appeal, in no way implies that he has authority to receive the reply to that appeal, since an administrative
complaint lodged by an official is not subject to any formal requirements, and the provisions of Article 90(2) of the Staff
Regulations do not require the official to be represented by a lawyer in order to lodge such a complaint.
Furthermore, although, with regard to proceedings before the courts, the third and fourth paragraphs of Article 19 of the
Statute of the Court of Justice, which applies to the Civil Service Tribunal by virtue of Article 7(1) of the Annex to that
Statute, provide that ‘parties must be represented by a lawyer [and o]nly a lawyer authorised to practise before a court of
a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist
a party before the Court’, the provisions of Article 90(2) of the Staff Regulations do not make any such reference to the
law of the Member States.
Lastly, in order not to infringe the principle of the uniformity of Community law as well as the principle of equal treatment
for officials, the application of the provisions of the Staff Regulations concerning the prior complaint which an official
must submit to the appointing authority before bringing proceedings before the courts cannot depend on how the national legal
systems classify the concept of authority.
In any event, where officials take the initiative to obtain representation by a lawyer for the purpose of lodging a complaint
and have failed to inform the administration that the reply to the complaint should not be addressed to that lawyer, it is
the officials’ responsibility to make sure, taking account of the relevant national legislation on authority, that their lawyer
is able to receive the reply to the complaint he has lodged on their behalf.
(see paras 125, 126, 131-134)
See:
F‑144/07 Efstathopoulos v Parliament [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 37