4.

Coming now to trade unionism against its historical background, in order to understand the precise signifiance of Article 24 a of the revised Staff Regulations of Officials, it is important to remember that the pattern of trade union law developed from the situation when, in earlier times, a trade union was regarded as something extra-legal and sometimes as illegal as well, until more modern attitudes brought recognition of the value of union activities. If Article 24 a is to have any practical significance, this cannot be confined to explicit recognition of the legality of union organization among the European officials but must also provide a definition of union activities. Without doubt, the unions are beginning to be partners in the formation of collective legal relationships and a union can undoubtedly be recognized as having responsibilities which include assisting individual officials who wish to take legal action and which, given a specific mandate, may go so far as to enable them to represent individuals who have a right of action: this applies both as regards the complaints procedure, involving the administrative authorities, provided for under Article 90, and as regards the action which can be initiated at a later stage pursuant to Article 91. We now come to the crux of the matter. We must determine what standing a union has in an action which at a given moment directly concerns the interests of clearly identified officials or the interests of a certain, possibly large, number of them, though the number does not affect the nature of the problem. And, if the answer we get in the present case can be applied as a general principle, we must also ascertain whether this has any consequential effects favouring recognition of the right of trade unions to act under the special procedural machinery which, for precise purposes and in respect of well-defined categories of applicant, is governed by Article 90 and 91 of the Staff Regulations. The difficulty is to establish a connexion between the powers conferred on the Court of Justice and the action which, within those limits, the union can be left free to take. For this we must look closely at Article 179, which confers those powers and sets out the conditions under which they are to be exercised, and even more closely at Article 91, which, in conjunction with Article 90, establishes a special channel of appeal for officials. To return to the reference made above to the possibility of a representative capacity which also embraces the right to be a party to preceedings, on the basis, of course, of a specific mandate from the individuals concerned, it should be noted that, although our Rules of Procedure do not allow for it, there is, given the type of service which unions exist to provide, nothing to prevent them from being from time to time granted powers of attorney. This would be of practical value, especially when the number of individuals with a right of action was large. In that case, however, the sole purpose would be to protect the interests of individuals, though only through a representative in the proceedings. The problem for us at this moment is to establish whether, apart from a mandate from an individual, the union, acting on its own behalf and in its own name, can, in proceedings before the Court on the basis of Article 91 of the Staff Regulations, demonstrate an interest which can be described as a general or at least a collective interest and which also embraces the interest of the indiviudal. When the problem is viewed from this standpoint, very serious and as far as I am concerned, insurmountable difficulties arise. Let me first recall what I said above about the jurisdiction of the Court, which, in addition to ensuring the protection of public interests, which within the limits we have noted, can be effected through the medium of interested parties, provides a special protection for officials against acts of the administration which adversely affect them. When the aid of the Court is invoked with the specific object of setting to rights deserving individual cases and not for the object of introducing new social rules, the union's function is its natural one of sustaining and not taking over the right of action of those immediately concerned, who retain in full their indivudal right to bring proceedings. The fact that a union may have an interest in obtaining judicial ruling on a question of principle and, to this end, may wish to defend its position in court is, in the absence of legislative action, insufficient to extend the field of jurisdiction conferred on the Court by the Treaty and by the Staff Regulations of Officials. To grant unions the right to ensure, through the Court, the protection of general or collective interests, as distinct from the interests of individual officials, means extending the range not only of possible applicants but also of the rights and interests which the Court exists to protect, thus lending a sort of authority for an actio popularis. It would be a subjective and objective extension of the jurisdiction of this Court beyond that conferred on it by legislation. Article 91 of the Staff Regulations brought within the Court's jurisdiction matters which are not comparable to those in Article 177 of the EEC Treaty. The Court has to find immediate solutions for specific disputes, not give an abstract ruling of general application. The fact that a suit over a specific, current dispute may involve questions of principle of general interest for the future, a familiar occurrence in the courts everywhere, could not, therefore, of itself provide a legal basis for recognition of the union's right to bring action in its own name. As the Commission's representative pointed out, it is not clear what purpose would have been served by a complaint from the union (as essential preliminary under the procedure laid down under Article 91) concerning a decision adopted by the institution which, in the ordinary course of events, would have been the subject of joint discussion which in this case proved fruitless. In answer to a complaint, in which the union can do nothing but repeat the arguments used in the previous discussions, the institution can only reaffirm its decision. If, every time an issue arose involving collective interests, the unions were able to lodge a complaint (a process intended as a remedy for individuals, enabling them, without loss, to avoid unnecessary recourse to the courts), it would become an empty formality, a useless continuation of an argument already closed as far as the administration was concerned. Moreover, although it is true that it would be pointless to recognize the right of officials to be members of trade unions without substantially accepting the unions' raison d'être in our times and in our society, viz., the responsibility of representing the collective demands and interests of this category, nevertheless it remains true that, because of the limitative way in which its jurisdiction has been conferred on the Court, the procedural position cannot remain unaffected by the fact that, in substance and in form, the decisions taken by the administration after negotiations with the union, which, since the introduction of Article 24 a, it is no longer able to avoid, are by and large concerned with the officials and not with the union as such. Again, to accept that, when officials are entitled to bring an action against the administration, the union may regardless of any specific mandate given it by the individuals, on its own account bring proceedings in respect of the same decision and on the same grounds, would be to open up a duplicate channel for the defence of the individuals' interests, with all the consequences — including undesirable ones — which would follow. One has only to imagine the uncertainty which would be produced, for example, on the question of the procedural time-limits, and the difficulties of applying the Court's ruling. It is unnecessary to add that proceedings in the field of employment always have a bearing on the specific interests of individual officials, each of whom has nevertheless the right to take what steps he deems best to protect his interests, in proceedings or otherwise; nor, conversely, to add that the most trivial issue personally affecting an individual official often has a bearing on problems of general concern. The collective or group interest which it is the duty of the union to represent can, moreover, be defended in the course of precedings through the procedural device of intervention, for which there is ample provision in Article 37 of the Statute of the Court, and in the decisions of this Court, and which, given the approach described above, should not be hedged in by formalistic restrictions when it comes to recognizing the trade unions as having distinct legal personality. It would, however, be wrong to use this admitted right to intervene on which to build a case for an independent right of action. Though, because an intervention remains within the ambit of an existing action, generous recognition of the right to intervene does not produce an extension of the Court's jurisdicition, an increase in the number of those who have the right to bring an action before the Court and in the variety of interests regarded as deserving of the Court's protection has, on the other hand, a direct bearing on the range of the jurisdiction conferred on it, and raises a much more delicate issue. This is largely due to the fact that, whereas the admissibility or otherwise of an intervention is determined in accordance with a general rule embodied in the Statute of the Court, expressed in general terms, the right to bring an action direct under the Staff Regulations of Officials is determined on the basis of the special rules provided therein and which are more restrictive in their application than the general rule. Apart from the objections I have described, other no less serious considerations argue against recognition of a trade union as having an independent right to bring an action. I refer to the extent to which the trade union is representative and to the lack of any standards whereby even a minimum representative capacity can be established. Legislation is, of course, silent on this subject although, let us remember, Article 9 of the Staff Regulations confers representative capacity on the Staff Committee, which, however, is regarded as being more in the nature of part of the structure of the individual institutions. Clearly, the question does not arise when the trade union is acting on a specific mandate from the individuals concerned. However that may be, it would be inconceivable to recognize a trade union or staff association of any kind as having the right to bring an action on its own account to defend collective or general interests regardless of its actual following among the members of staff concerned. One can well imagine the practical problems which would require solution in the event of more than one union being involved, each of them insisting on following its own different course of action in the proceedings. Again, on what basis would it be possible to establish sufficient representative capacity? Whould it be enough for the institution concerned to have agreed to maintain contact with the organization, for example by informing it of the decision involved in this case, or would it be necessary to take into account more tangible but not always easily indentificable factors such as the number of actual members shown in the annual return of subscriptions or perhaps factors not necessarily of any significance such as the percentage of votes obtained by the union candidates in the Staff Committee elections? And to what extend would a ruling given in a trade union action be applicable?