JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

24 September 1996

Case T-182/94

Ricard Marx Esser and Casto Del Amo Martinez

v

European Parliament

‛Officials — Representation — Staff Committee — Elections — List of staff entitled to vote — Striking-out, at the end of the ballot, of staff members on leave for personal reasons’

Full text in French II-1197

Application for:

annulment of elections to the staff committee.

Decision:

Annulment.

Abstract of the Judgment

The general assembly of the staff of the secretariat of the Parliament decided, on 3 March 1993, that the elections to the staff committee should take place from 21 to 27 May following; it established that the number of staff members entitled to vote was 3583 and the two-thirds quorum 2389.

In order to allow the votes to be recorded, the adminstration supplied the college of scrutineers with a list of staff members entitled to vote updated as at 21 May 1993, the date on which the ballot began.

On 27 May 1993, the last day of the ballot, the Director of the Legal Service of the Parliament considered that the 96 staff members on leave for personal reasons as at 21 May 1993 should be deemed not to be entitled to vote; accordingly they were struck out from the updated list of voters. The resulting number of voters was 3496, with a quorum of 2331.

When the ballot boxes were opened, on 1 June 1993, the college of scrutineers established that, with 2359 votes cast, the quorum of 2331 had been achieved and proceeded to count the votes.

On 10 June 1993 the applicants made a complaint to the college against Document PE 170.650 of 2 June 1993 in which the college noted that the number of staff members entitled to vote, the quorum, and the number of votes cast were 3496, 2331 and 2359 respectively. The applicants observed that the number of votes cast was 30 less than the quorum established by the general staff meeting held on 3 March 1993.

On 6 July 1993 the college rejected the applicants' complaint on the ground that the figures quoted at the general meeting were for guidance only, and had to be updated to reflect the situation prevailing on the first day of the ballot.

In a letter dated 21 September 1993 addressed to the President of the Parliament, the applicants contended that the list of staff members entitled to vote had to be drawn up before the ballot, and that in this case the list had been incorrectly updated by the removal of staff members on leave for personal reasons.

On 3 February 1994 the President of the Parliament rejected the applicants' allegations, taking the view that the quorum prescribed had been attained.

Jurisdiction of the Court of First Instance

The Court has jurisdiction to hear the dispute and exercises its power of review in the context of applications brought against acts or omissions of the appointing authority arising out of the exercise of its supervisory function in electoral matters (paragraphs 29 and 30).

See: 54/75 De Dapper and Others v Parliament [1976] ECR 1381. para. 23; 146/85 and 431/85 Diezler and Others v ESC [1987] ECR 4283, para. 5

Admissibility of the application

It is for the Court to review, even of its own motion, observance of the rules laid down by Articles 90 and 91 of the Staff Regulations which are of general importance and may not therefore be waived by the parties (paragraph 31).

See: T-34/91 Whitehead v Commission [1992] ECR II-1723, para. 19

The Court finds, first, that the applicants' letter of 21 September 1993 constituted a complaint for the purposes of Article 90(2) of the Staff Regulations, inasmuch as it sought to have the appointing authority make good its omission to annul the contested voting operations (paragraph 33).

See: De Dapper and Others v Parliament, cited above, paras 28 to 32; Diezler and Others v ESC, cited above, para. 8

The Court finds, secondly, that the appointing authority's act is the decision of the President of the Parliament of 3 February 1994 which is a decision in its own right, adopted in the context of the institution's duty to ensure that voting operations are properly conducted (paragraph 34).

See: T-28/89 Maindiaux and Others v ESC [1990] ECR II-59, para. 32; T-534/93 Grynberg and Hall v Commission [1994] ECR-SC II-595, para. 21

It cannot be denied that the applicants are adversely affected, within the meaning of Article 91(1) of the Staff Regulations, by that decision, inasmuch as it rejects their complaint of 21 September 1993 and refuses to annul the disputed elections (paragraph 35).

See: T-6/93 Perez Jimenez v Commission [1994] ECRSC II-497, para. 34

Since that decision was adopted following a complicated procedure, the Court of First Instance may, having regard to the fact that the steps involved in the contested voting operations are connected, examine whether the decisions of the college - which are closely linked to the contested decision - may be vitiated by illegality (paragraph 37).

See: C-448/93 P Commission v Noonan [1995] ECR I-2321, para. 17

The applicants' legal interest in bringing the action

In their capacity as voters in the disputed elections and placing reliance on that status in order to seek judicial review of the election results, the applicants retain a legitimate interest in seeing that their right to vote is effectively exercised in conditions which comply with the relevant provisions, even if the staff committee constituted as a result of the disputed elections has reached the end of its term of office since the proceedings were instituted. Moreover, the applicants retain a legal interest in bringing proceedings in order to prevent the alleged illegality of the contested voting operations from recurring in the future (paragraphs 40 and 41).

See: Diezler and Others v ESC, cited above, para. 9; 207/86 Apesco v Commission [1988] ECR 2151, para. 16; Grynberg and Hall v Commission, cited above, para. 29

Substance

The plea alleging that the college lacked competence

Although this plea was raised by the applicants for the first time at the hearing, and must therefore be deemed to be a fresh issue and therefore inadmissible, the Court must examine it of its own motion since it is a matter of general importance (paragraphs 42 and 43).

See: 14/59 Pont-à-Mousson v High Authority [1959] ECR 215, at 229

The second paragraph of Article 1 of Annex II to the Staff Regulations authorizes the general meeting to determine the categories of staff members entitled to vote. Since staff members on leave for personal reasons as at 3 March 1993 appeared on the list of staff members entitled to vote drawn up by the general staff meeting, the college did not have power to strike them out (paragraphs 45 and 48).

The plea alleging infringement of Article 7 of the electoral rules

The Court considers that, even on the assumption that the Parliament is right in maintaining that Article 7 of the electoral rules allows the list of staff members entitled to vote to be updated after the ballot has begun, the college was on no account entitled of its own motion to strike from the list of voters the entire category of staff members on leave for personal reasons, without first taking note of the observations which Article 7 enables voters to submit to the college concerning the list of voters.

Vie plea alleging infringement of the fifth paragraph of Article I of Annex II to the Staff Regulations and of paragraph 6 of Article 6 of the electoral rules

The Court finds that the number of voters, 2359, necessarily falls short of the quorum which would have been obtained on the basis of the list of voters updated by the administration on 21 May 1993 and from which the college was not legally entitled to excise the 96 staff members on leave for personal reasons.

Consequently, by counting the ballot papers and announcing the results of the ballot in public in spite of the lack of the quorum prescribed, the college infringed the two provisions relied upon which require a second round to be organized when the quorum is not obtained.

Having established the unlawfulness of the decisions of the college, the one contained in Document PE 170.650 and the other rejecting the applicants' first complaint, the Court annulled the decision of the President of the Parliament rejecting the applicants' second complaint.

Operative part:

The decision of the President of the European Parliament of 3 February 1994 rejecting the applicants' complaint and refusing to annul the contested voting operations is annulled.