OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 2 FEBRUARY 1977 ( 1 )

Mr President,

Members of the Court,

The case on which I am giving my opinion today concerns the formation of the Consultative Committee provided for in the ECSC Treaty.

Under Article 18 of that Treaty this committee consists of representatives of producers, workers, consumers and dealers. As regards the workers' representatives, the only ones relevant to these proceedings, Article 18 further provides that the Council shall designate workers' representative organizations among which it shall allocate the seats to be filled. The organizations thus appointed are required to draw up a list containing twice as many names as there are seats allotted to them. The Council then appoints the members of the Consultative Committee from this list for two years.

This procedure had to be followed once more in Summer 1976 as the term of office of the Committee appointed in 1974 came to an end on 24 June 1976.

The applicant, a French trade union with members from the iron and steel industry, knowing this fact, sent a letter to the Secretary-General of the Council of Ministers on 4 June 1976. It pointed out that although it was the second largest of the French unions in the abovementioned sector, it had not had a seat on the Consultative Committee since 1966. In addition it nominated two candidates for a seat to which, in its opinion, its organization should be entitled.

However, this letter met with no success. In fact the Council had already designated, by Decision of 1 June 1976 (OJ L 149, p. 12), the representative organizations which are under a duty to draw up lists of candidates for the Consultative Committee. However, the applicant organization was not listed in the annex to this decision as one of the four French workers' organizations to which one seat each was allotted. Accordingly, the applicant was informed by a letter from the Secretary-General of the Council of 1 July 1976 with which a copy of the abovementioned decision was enclosed that the relevant organizations had been designated by the Council upon the proposal of the governments; since the applicant was, however, not amongst them, it was not possible to propose to the Council the candidates which it had nominated.

The applicant did not agree with this decision and on 14 July 1976 it made an application to the Court of Justice. In the meantime members of the Consultative Committee had been appointed by Council Decision of 10 July 1976. It stated that its organization was, as regards, inter alia, the number of members and the age of the organization, second out of the relevant French trade unions and that it is therefore more representative than three organizations which were designated for France in the Council Decision of 1 July 1976. Moreover, the choice should not have been made without consultation of the organizations concerned and should not, as happened in this case, have been virtually left to the Government, which had not in fact conveyed to the Council a list of all the organizations considered.

For these reasons the applicant requested the annulment of the Council Decision of 1 June 1976 and the refusal of the Secretary-General of the Council contained in the letter of 1 July 1976.

The Council considers that the application which has been lodged is inadmissible. Accordingly, it has merely applied for a preliminary decision on the admissibility of the application under Article 91 (1) of the Rules of Procedure.

In accordance with Article 91 (3) and (4) of the Rules of Procedure, my opinion today is confined to the question of the admissibility of the application.

Before I consider this question, I should like however to mention briefly that the application also contains a request that the procedure for reappointment of the Consultative Committee be suspended. I can be very brief on this point. The application in question is inadmissible because it was not made by a separate document as laid down in Article 83 (3) of the Rules of Procedure. Moreover, it is quite certain that it was already devoid of purpose when it was lodged, since at that time the procedure for reappointment of the Consultative Committee was already closed; as I have already said, it took place on 10 July 1976.

The Council is certainly correct when it emphasizes that the admissibility of the application lodged by the Confédération Française Démocratique du Travail, which is the true subject of this opinion, must only be assessed on the basis of the ECSC Treaty since the procedure comes exclusively within the context thereof.

1. Accordingly, it is necessary first of all to make the following points with regard to the application for the annulment of the decision of the Council of 1 June 1976: Article 33 of the ECSC Treaty, is irrelevant; this article governs only the right of action as regards decisions and recommendations of the High Authority (now the Commission) and under it, apart from the Member States and the Council, only undertakings within the meaning of Article 80 of the Treaty, that is, as has already been held in decided cases, only manufacturing undertakings and, moreover, solely associations within the meaning of Article 48 of the Treaty, that is, associations of undertakings (Joined Cases 7 and 9/54, Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority of the ECSC, Judgment of 23 April 1956, Recueil, Volume II, 1955-1956, p. 55), are entitled to bring applications. On the other hand, Article 38 of the ECSC Treaty is decisive. When it speaks of decisions of the Council, it certainly also includes legally binding measures like the decision in question. It is however important that under Article 38 only the High Authority (now the Commission) and the Member States have a right of action. Other institutions including the trade unions are therefore unable to submit such measures to review by the Court. Complaints may be made about this as the applicant did by pointing out that the trade unions are regarded as structural components of the Community under the Treaty and that one of the objectives of the Treaty is to improve the standard of living of the workers. However, according to the unambiguous wording of Article 38, which was not amended by later Treaties, as follows clearly from Article 232 of the EEC Treaty, it is impossible to avoid the abovementioned conclusion. In particular, it seems impossible to escape this conclusion by reference to Article 31 of the ECSC Treaty according to which the Court must ensure that in the interpretation and application of this Treaty, and of rules laid down for the implementation thereof, the law is observed. In fact it is quite abvious that this general introductory provision only characterizes the tasks of the Court of Justice. However, in view of the specific and detailed provisions contained in Article 33 et seq., it cannot be invoked in order to establish jurisdiction where such is not laid down in the individual provisions. Without its being necessary to examine the question whether in such cases fairly satisfactory legal protection is possible by means of an application brought by a Member State or the High Authority, to which the persons concerned may have recourse, or perhaps also by way of questions referred for a preliminary ruling by national courts, it only remains to say with regard to the first conclusion that it is impossible to state that it is admissible.

2. With regard to the second conclusion I must say at once that here too I am of the same opinion. In this respect it is unnecessary to deal with the question whether the content of the contested letter constitutes in any way a measure which is capable of being contested. Nevertheless it should be borne in mind in this connexion, and this may be put forward as an argument against its contestability, that the Secretary-General did no more than refer in the abovementioned letter to a decision which had already been made and the contents thereof and draw the necessary conclusions from them without his measure producing special legal effects within the meaning of the judgment of 5 December 1963, in Joined Cases 23, 24 and 52/63, Société Anonyme Usines Emile Henricot and Others v High Authority of the European Coal and Steel Community, [1963] ECR 217. It is, rather, sufficient to state that Article 38 of the ECSC Treaty could perhaps also be invoked with regard to the letter because a procedure followed by the Council of Ministers is involved. Accordingly, even if an attempt were made to overlook the fact that this is not a decision of the Council of Ministers but a measure adopted by its Secretary-General, the fact that trade unions are not included among those entitled to bring applications, who are exhaustively ennumerated in Article 38, would in any case be decisive for the purposes of the decision. Since no other provisions under which it would be possible to bring an action come into consideration with regard to the letter, the application is also inadmissible in this respect.

3. Therefore, to summarize I can only suggest that the Court dismiss the application as inadmissible and order the applicant to pay the costs as the Council has requested.

( 1 ) Translated from the German.