JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

22 April 2004

Case T-343/02

Roland Schintgen

v

Commission of the European Communities

(Officials – Staff Committee of the Commission in Luxembourg – Elections to the Luxembourg Staff Committee – Electoral system – Principles of fairness and democracy)

Full text in French II - 0000

Application: for annulment of the decision of the appointing authority, dated 16 July 2002 and notified to the applicant on 6 August 2002, rejecting the applicant’s complaint of 28 February 2002, by which, in essence, he applied for annulment of the elections to the local Staff Committee of the Commission in Luxembourg which took place in November 2001 and of the appointment of those elected to that committee and the Commission’s failure to annul the elections.

Held: The application is dismissed. Each party is ordered to bear its own costs.

Summary

1. Plea of illegality – Scope – Measures which may be claimed to be illegal

(Art. 241 EC)

2. Plea of illegality – Raised in relation to an act against which the applicant has not brought an action for annulment within the period prescribed – Inadmissibility – Objection – Applicant might have reasonably doubted whether application would be admissible

(Art. 241 EC)

3. Officials – Representation – Staff Committee – Elections – Choice of electoral system by the general meeting of officials – Judicial review – Limits

4. Officials – Representation – Staff Committee – Elections – Electoral system – Single-round majority or mixed ballot – Breach of the principles of democracy and fairness – None

(Staff Regulations, Art. 9; Annex II, Art. 1; Rules laying down the composition and operation of the Staff Committee of the Commission, Art. 6)

1. In order for a plea of illegality as provided for in Article 241 EC to be admissible, the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question.

The plea of illegality provided for by Article 241 EC cannot be raised by a legal or natural person who could have brought proceedings against the act in question but who did not do so within the prescribed period.

(see paras 25-26)

See: 92/78 Simmenthal v Commission [1979] ECR 777, para. 39; T‑6/92 and T‑52/92 Reinarz v Commission [1993] ECR II‑1047, para. 57, and the case-law cited therein; T‑244/93 and T‑486/93 TWD v Commission [1995] ECR II‑2265, para. 103; T-192/96 Lebedef v Commission [1998] ECR-SC I‑A‑363 and II‑1047, paras 27 to 30

2. While it is true that the plea of illegality provided for by Article 241 EC cannot be raised by a legal or natural person who could have brought an action for annulment of the act in question but who did not do so within the prescribed period, that finding does not apply where an applicant might have had reasonable doubt as to the admissibility of such an action.

(see para. 26)

3. General meetings of officials have a broad autonomy to determine the method whereby staff committees are elected, provided that the method chosen is not susceptible of infringing the principles of democracy or equity.

It follows that, in actions questioning the legality of such methods of election, the Court’s review must ensure that there have been no manifest errors of assessment, particularly in the application of those principles.

(see paras 39-40)

See: Lebedef v Commission, cited above, para. 70

4. Neither Article 9(3) of the Staff Regulations nor Article 1 of Annex II thereto nor Article 6 of the rules laying down the composition and operation of the Staff Committee of the Commission lays down the method of elections to the Staff Committee, and nothing in those provisions requires that the method of election must reasonably respect the principle of proportionality.

The fact that a method of election does not reflect proportionally the outcome of a ballot does not in itself infringe the principles of democracy and fairness. Even a single-round majority election system respects those principles, although it does not proportionally reflect the outcome of the elections. The same conclusion must be reached a fortiori for a mixed election method combining the proportional system and the majority system.

(see paras 42-43)

See: Opinion of Advocate General Sir Gordon Slynn, 146/85 and 431/85 Diezler and Others v ESC [1987] ECR 4283, 4298; Lebedef v Commission, cited above, para. 70