Opinion of Mr Advocate General Lenz delivered on 24 March 1988. - Confederazione italiana dirigenti di azienda (CIDA) and others v Council of the European Communities. - Appointment of members of the Economic and Social Committee. - Case 297/86.



European Court reports 1988 Page 03531



Opinion of the Advocate-General

Mr President,

Members of the Court,

A - Facts

1 The case in which I am delivering my opinion today concerns the composition of the Economic and Social Committee as it was fixed for the period from September 1986 to September 1990 by the decision adopted by the Council, after consulting the Commission, on 15 September 1986 . ( 1 )

2 The Economic and Social Committee, which is provided for both in the EEC Treaty and in the EAEC Treaty ( according to Article 5 of the Convention on certain institutions common to the European Communities, there is a single Economic and Social Committee ), consists of "representatives of the various categories of economic and social activity, in particular, representatives of producers, farmers, carriers, workers, dealers, craftsmen, professional occupations and representatives of the general public" ( Article 193 of the EEC Treaty, which according to Article 5 of the Convention on certain institutions common to the European Communities is the sole provision applicable ). Article 195 of the EEC Treaty ( like Article 167 of the EAEC Treaty ) provides that the composition of the Committee is to take account of the need "to ensure adequate representation of the various categories of economic and social activity ". The members of the Committee are chosen on the basis of a list submitted by each Member State containing twice as many candidates as there are seats allotted to its nationals ( Article 195 of the EEC Treaty, Article 167 of the EAEC Treaty ). That means that in the case of the Italian Republic, which holds 24 seats ( Article 194 of the EEC Treaty and Article 166 of the EAEC Treaty ), the list must contain the names of 48 candidates . Since according to Article 19 of the Rules of Procedure of the Economic and Social Committee ( 2 ) three groups may be constituted within the Committee ( representing employers, workers and other categories of economic and social activity respectively ), the same division is followed in drawing up the national lists . The Italian list was thus composed of three groups each containing eight principal candidates and the same number of alternative candidates .

3 The applicants in these proceedings, the Confederazione italiana dirigenti di azienda ( CIDA ) ( Italian Confederation of Company Directors and Managers ), which ( the Court was told ) is the sole representative of the interests of senior managers in Italy, Fausto d' Elia, President of CIDA and current president of the confédération internationale des cadres ( International Federation of Executive Staffs ), which is an association of all the national federations of business managers in Europe, and Pierluigi Marchesi, Vice-President of CIDA, complain that the Italian proposal put forward the names of two business managers only among the alternative candidates in the third group and that for that reason the Economic and Social Committee now in office does not include any Italian representative of business managers ( whereas in 1982 Mr d' Elia was a member, having been put forward as a principal candidate ).

4 The applicants consider that in various respects that constitutes an infringement of the EEC Treaty; they therefore brought proceedings against the Council for the annulment of the Council' s decision appointing the members of the Economic and Social Committee for the period from 1986 to 1990 .

5 In my view these proceedings, which the defendant and the intervener regard as inadmissible and, in any event, without foundation, call for the following observations .

B - Opinion

I - Admissibility of the action

6 Doubt has been cast on the admissibility of the action brought by the applicant organization on the ground that having regard to the method of appointing the Economic and Social Committee, that organization is in no way concerned by the contested decision or, at the very least ( according to the Spanish Government ), is not directly concerned by that decision . With regard to the two individual applicants, the question arises whether they are in fact individually concerned or whether they were excluded from the Economic and Social Committee on the same basis as any other person not appointed .

7 1 . In my view, those objections cannot be upheld in regard to the actions brought by the two individuals . That is relatively easy to demonstrate, and for that reason I will begin by considering that point .

8 There is in fact no doubt that they are concerned inasmuch as they were proposed by the Italian Government but were not chosen by the Council from the Italian list . It could be said that they are in a similar situation to persons whose candidatures for an advertised post have been rejected; they may therefore be considered to have some sort of an expectation of being appointed ( on the other hand, the reference in regard to Mr d' Elia to the fact that he was previously a member of the Economic and Social Committee is of no consequence since former members of the Committee have, of course, no right to re-appointment ).

9 It must also be accepted that these applicants are individually concerned . As is well known, the Court lays weight on the question whether the legal position of the applicant has been affected by a factual situation which differentiates him from all other persons, ( 3 ) or as it was put in the judgment in Case 169/84, ( 4 ) whether a legal measure affects the applicant by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons . In this case that can certainly be said, since the two individual applicants are distinguished from all other persons who were not appointed by virtue of the fact that their names were included in the Italian proposal .

10 2 . On the other hand, the objections concerning the admissibility of the action seem more justified in regard to the Italian applicant organization .

11 The relevant case-law is in fact quite strict in that regard . I should point out that in Case 117/86 ( 5 ) an action brought by an association against Community regulations which could be said to have affected the general economic interests of an entire category was dismissed as inadmissible . A similar conclusion was reached in Case 282/85, ( 6 ) in which it was considered significant that the applicant association did not have any interest of its own in bringing an action against a Commission decision concerning aid to an entire economic sector, and in Case 135/81, ( 7 ) in which an association was held not to be directly concerned because it could not take part in a tendering procedure organized by the Commission ( with which the case was concerned ).

12 Furthermore, importance may be attached to the fact that the Economic and Social Committee is composed only of individuals, not persons appointed in their capacity as members of an association . That follows from Article 194 of the EEC Treaty, according to which the members of the Committee are "appointed in their personal capacity and may not be bound by any mandatory instructions ". It is also significant in that regard that at the meeting of the permanent representatives of 14 April 1958 ( preparing for the appointment of the first members of the Economic and Social Committee ), the Italian delegation stated that members of the Committee "ne doivent être liés par aucun mandat impératif ".

13 It also clear that under the Treaties of Rome associations do not participate in the appointment of members of the Economic and Social Committee in the same way as they do under the ECSC Treaty, Article 18 of which provides that the Council is to designate organizations representing producers and workers, among which it is to allocate the seats to be filled, and each organization is to draw up a list of candidates from which appointments are to be made . The Treaties of Rome provide only a limited role for associations in the procedure, inasmuch as the Council, under Article 195 ( 2 ), may obtain the opinion of European bodies which are representative of various economic and social sectors .

14 On the other hand, some weight must be given to the argument based on the judgment in Case 66/76, ( 8 ) delivered in a similar case under the ECSC Treaty ( a French association brought an action against the refusal to include it as a representative organization obliged to draw up a list of candidates for the Consultative Committee ). That judgment emphasized the need to adopt a wide interpretation of the provisions concerning the bringing of actions before the Court of Justice so as to ensure the legal protection of individuals . Although in that case, in view of the structure and terms of the ECSC Treaty, there was an insurmountable obstacle to the application of that principle ( because actions against decisions of the Council may be brought only by the Member States or the Commission ), there is nothing in this case to prevent the full application of that principle to Article 173 of the EEC Treaty .

15 Nor should it be overlooked that, unlike Cases 282/85 and 117/86, this case is not concerned with a measure which primarily affects the interests of the members of an association and not the association' s own interests . The question under discussion is the appropriate degree of participation of economic and social categories in the Economic and Social Committee, which the Council must assess under Article 195 of the EEC Treaty . In such a situation, nothing could be more natural than to leave the defence of the interests of the various categories referred to in Article 195 to organized groups, that is to say associations, especially since the individual members of the group, since they are not individually affected, are generally not entitled to bring an action before the Court .

16 Finally, the reference at the hearing by the representative of the Spanish Government to the possibility open to the Commission and the Member States of obtaining judicial review of a Council decision adopted under Article 194 of the EEC Treaty is also, to my mind, unconvincing . Obviously such possibilities, which are not always easy to turn into reality ( in any event, actions cannot be brought before national courts ), cannot be placed on the same footing as proceedings which the persons concerned may themselves bring directly .

17 I therefore think, not least because CIDA represents a significant interest group, that it can be held without any great hesitation to be directly and individually concerned within the meaning of Article 173 of the EEC Treaty, and therefore its action against the abovementioned Council measure appointing the members of the Economic and Social Committee may be regarded as admissible .

II - Substance of the case

1 . Infringement of the Treaty

18 Although the applicants refer to Articles 193 to 195 of the EEC Treaty, they are concerned primarily ( as the Spanish Government rightly pointed out ) with compliance with the second subparagraph of Article 195 ( 1 ), which provides that the composition of the Committee is to take account of the need to ensure adequate representation of the various categories of economic and social activity .

19 ( a ) With regard to the applicants' complaint that the Italian list of proposed candidates was unbalanced because representatives of business managers were included only in the list of alternative candidates, which is generally disregarded ( notwithstanding the fact that the importance of that group is recognized in various Italian statutes and in the case-law of the highest courts ), my opinion is that such criticisms may at best be raised in proceedings before the national courts against the decision of the national authorities drawing up the list of candidates ( if, since representatives of CIDA are in fact included in the list of candidates, any criticism may be made of the overall composition of that list ).

20 Furthermore, it certainly cannot be argued that the second subparagraph of Article 195 ( 1 ) is complied with only if the national lists of proposed candidates also meet its requirements . That must be very difficult, for example, in small countries which have only a few members of the Committee, and therefore, as we were told, from 1958 onwards care was taken to allocate the seats in the Economic and Social Committee to the various groups and countries in such a way as to comply in an overall manner with the second subparagraph of Article 195 ( 1 ) ( I am referring here to Annex I to the memorandum of the Secretariat of the Council of 11 March 1958, which incidentally also shows that even the larger Member States did not have representatives in every category ). Furthermore, the method of appointing members of the Economic and Social Committee ( on the basis of national lists containing twice as many candidates as there are seats ) is clearly directed not at a mere fusion of the national lists at Community level but, to the extent necessary, an appropriate choice on the basis of those lists in order to comply with Article 195 .

21 ( b ) It must therefore be accepted that, having regard to the fact that the list of categories to be represented set out in Article 193 is provided merely by way of example and to the terms of Article 195 itself (" adequate representation" of the various categories ), the Council has considerable discretion under Article 195 in regard to the way in which it complies with the second subparagraph of Article 195 ( 1 ) in appointing the members of the Economic and Social Committee . Consequently, an infringement of that article in regard to the categories to be represented and the degree of representation accorded to them will occur only where the Council' s assessment is manifestly erroneous .

22 After all that has been said in that regard, it is difficult to imagine that that could be so in this case .

23 ( aa ) There can be no question of an infringement of Article 195 on the basis of the argument initially put forward by the applicants to the effect that there are no representatives of business managers in the new Social and Economic Committee .

24 In fact, as has been shown, that category is represented by a member of the French confédération générale des cadres ( General Confederation of Company Directors and Managers ) ( which, in 1949, together with CIDA and a German association, formed the confédération internationale des cadres ( International Federation of Executive Staffs ) of which Mr d' Elia remains president ). The member of the board of the Luxembourg fédération des employés privés ( Federation of Private Sector Office Workers ), an association which is also a member of the confédération internationale des cadres, should also be regarded as a representative of that category, as the Council' s representative argued, without being contradicted, at the hearing . Thus the question raised by the Council as to whether company directors and managers do in fact constitute a category, since no such category has ever been constituted as such in the Economic and Social Committee, may be left open ( as was pointed out, during his term of office Mr d' Elia was a member of the workers' group ).

25 ( bb ) Nor can there be any erroneous exercise of discretion in the fact that CIDA is no longer represented in the Economic and Social Committee .

26 The Council rightly emphasized in that regard that the Treaty speaks of the representation not of organizations but of economic and social categories ( and, as has been seen, company directors and managers are in fact represented ). Nothing in the applicants' arguments indicates that company directors and managers, as a category, are now inadequately represented ( they are in fact represented by the Luxembourg and French associations, the second of which, we were told, is considerably larger than CIDA ). The applicants merely argued that no justification was given for the fact that CIDA was no longer represented in the Economic and Social Committee . That cannot of itself constitute an erroneous exercise of discretion .

27 ( cc ) Finally, an allegation of erroneous exercise of discretion cannot be justified on the ground that two other categories of Italian economic and social activity were over-represented in the Italian list of proposed candidates . As the Court is aware, the applicants put forward that argument on the basis that three Italian trade unions each have three representatives in the Economic and Social Committee although they differ greatly in size ( one of the trade unions is as big as the other two put together ) and on the basis that three representatives of Italian public undertakings were also appointed to the Economic and Social Committee .

28 The reply to that argument is that the EEC Treaty is not concerned with the adequate representation of organizations ( and thus with their size ), but with the representation of social categories . It should also be emphasized that the adequate representation referred to in Article 195 of the EEC Treaty must exist not at national level but at Community level . However, it was not argued that by virtue of the composition of the Italian list of proposed candidates, which must be viewed in the context of the members appointed from other lists, workers and public undertakings, which are undoubtedly significant categories, are over-represented in the Economic and Social Committee . It may be added that even if there were an excessive number of candidates from those two categories in the Italian list ( a complaint which should have been raised at national level ) that would not prove that company directors and managers were inadequately represented . The correct way of assessing their representation is to compare it to that of other categories ( in regard to which nothing further was said ), and it can in no way be excluded that a possible over-representation of workers and public undertakings might be to the disadvantage of categories other than company directors and managers .

29 ( c ) It must therefore be concluded that the applicants have not produced sufficient evidence to show that the Council has infringed the second subparagraph of Article 195 ( 1 ) of the EEC Treaty by simply adopting the list of candidates put forward by Italy as principal candidates .

2 . Misuse of powers

30 In their second submission, the applicants complain that by merely appointing the candidates proposed by Italy as principal candidates and by failing to verify whether the various categories were thereby adequately represented the Council failed to make lawful use of its powers and in fact handed the appointment of the members of the Economic and Social Committee over to the governments of the individual Member States .

31 ( a ) Having regard to the usual definition of a misuse of powers ( use of powers for purposes other than those envisaged by the law ) it can be said first of all that it is questionable whether this criticism actually alleges a misuse of powers or whether it merely suggests an infringement of the Treaty ( failure to make the assessment required by the second subparagraph of Article 195 ( 1 ) ).

32 ( b ) However, what is more important, and here I am anticipating the outcome of my enquiry, is that even in their second submission the applicants do not produce sufficient evidence to justify the annulment of the Council' s decision .

33 ( aa ) It is thus clear to me that the mere fact that a national list of candidates proposed as principal candidates is adopted without alteration does not necessarily mean that there has been no assessment of the content of that list, and it is also clear that even where there is a mere fusion of the national lists of candidates proposed as principal candidates, adequate representation of the various categories of economic and social activity as required by Article 195 may be perfectly well achieved .

34 ( bb ) Nor does the fact that the Italian list of proposed candidates initially submitted contained only names, with no further information concerning the persons proposed, prove that the Council did not make the assessment required of it . At the hearing it was stated, and reference was made to a telex on this subject, that the Council had indeed seen that defect and insisted that the list be made complete . When the members of the Economic and Social Committee were appointed it was therefore known to which organizations the Italian candidates belonged and it was thus possible to determine the category to which they belonged for the purposes of Article 193 of the EEC Treaty .

35 ( cc ) Furthermore, the fact that the minutes of the Council meeting, which were submitted to the Court, make no mention of any verification of the lists or of any discussion on that subject cannot be relied on in support of the applicants' complaint . As the Court has seen, the Council' s decision was adopted as one of the "A items" on the agenda; that is to say, the Council relied essentially on the preparatory work carried out by the Permanent Representatives Committee . There is nothing to show, however, that the latter did not carry out its task conscientiously, even if it would be more satisfactory if some positive sign of that could be found . On the contrary, according to the information supplied to the Court at the hearing, in 1986, as on earlier occasions, the composition of the Committee was checked, but no reason was found to depart from the proposals of the Member States . The Council' s argument on that point is not contested .

36 ( dd ) Moreover, I do not consider it significant that there was no consultation of representative European bodies under Article 195 ( 3 ), on the basis of which the applicants claim that the Council deliberately refrained from consulting such organizations ( CIDA would certainly have expressed its opinion ) because it did not wish to dispute the candidates proposed by the Member States .

37 Leaving aside the fact that Article 195 speaks only of European organizations ( it is difficult to see how CIDA, as a national association, could be consulted under that provision ), it is important to note that according to Article 195 such consultation is not required but is at the discretion of the Council . It is difficult to see in what way there has been a misuse of powers, inasmuch as it appeared from the statements of the Council' s representative at the hearing that the provision on consultation was not applied because in previous years notices in the press calling upon such bodies to express their views had had "disappointing results ". ( 9 )

38 ( ee ) Finally, no criticism can be made of the way in which the Council consulted the Commission . The purpose of consulting the Commission is to aid the Council in taking the necessary account of the need to ensure adequate representation of the various categories of economic and social activity . The Commission is particularly well placed to do so because by virtue of its own composition it is in a position to obtain a general view of the situation in the individual Member States, and thus in the Community as a whole, and to ensure that effect is given to the Community' s interest in compliance with the provisions concerning adequate representation of the various categories of economic and social activity . The Council consulted the Commission by sending it the lists submitted by the Member States one by one or a few at a time . In that way it enabled the Commission to take cognizance of the Member States' proposals at the earliest possible moment, without pre-judging the position it would ultimately adopt . For that reason, I consider that the procedure adopted by the Council cannot be criticized .

39 Nor can the Commission' s response upon being consulted by the Council be criticized . In several letters, the Commission expressed its views on the Member States' proposals . It expressed its view for the last time one day before the decisive meeting of the Permanent Representatives Committee . At that time it had in its possession all the lists of candidates and had received the last list, including explanations sent a few days later, almost one month earlier . The Council meeting at which the members of the Economic and Social Committee were appointed took place on 15 and 16 September 1986, that is to say, more than four weeks after the receipt of the last communication from a Member State . It may therefore be concluded that the Commission was able to express its views in full knowledge of the overall composition of the Economic and Social Committee; in particular, it had such knowledge when it expressed its views on the Italian list of candidates . It must be admitted in the applicants' favour that no documents can be found on the file indicating that the Commission made any such overall assessment . However, as the Council' s representative pointed out to the Court, it cannot be concluded from that that such an assessment never took place, precisely because part of the procedure between the Council and the Commission leaves no written trace . In any event, in the circumstances of the case, it cannot be concluded from the absence of such a document that the Commission failed to make such an overall assessment and thereby infringed the Treaty .

40 ( ff ) Having regard to what has already been said, there seems to be no need for further discussion in this context of the observations which have been made to the effect that trade unions and public undertakings were over-represented in the Italian list of candidates .

41 ( c ) I therefore conclude that the allegation of misuse of powers is not justified, and it follows that the application as a whole must fail .

C - Conclusion

42 I therefore propose that the Court should decide as follows :

The action brought by the Confederazione italiana dirigenti di azienda, Mr d' Elia and Mr Marchesi should be dismissed as unfounded and the applicants ordered to pay the costs, including those of the intervener .

( * ) Translated from the German .

( 1 ) OJ 1986, C 244, p . 2 .

( 2 ) OJ 1986, L 354, p . 1 et seq .

( 3 ) Judgment of 18 November 1975 in Case 100/74 CAM v Commission (( 1975 )) ECR 1393 .

( 4 ) Judgment of 28 January 1986 in Case 169/84 Compagnie française de l' azote ( Cofaz ) SA and Others v Commission (( 1986 )) ECR 408 .

( 5 ) Order of the Court of 5 November 1986 in Case 117/86 Union de Federaciones Agrarias de España ( Ufade ) v Council (( 1986 )) ECR 3255 .

( 6 ) Judgment of 10 July 1986 in Case 282/85 Comité de développement et de promotion du textile et de l' habillement ( DEFI ) v Commission (( 1986 )) ECR 2469 .

( 7 ) Judgment of 28 October 1982 in Case 135/81 Groupement des agences de voyages v Commission (( 1982 )) ECR 3799 .

( 8 ) Judgment of 17 February 1977 in Case 66/76 Confédération française démocratique du travail ( CFDT ) v Council (( 1977 )) ECR 310, paragraph 8 .

( 9 ) "Des resultats quelque peu décevants ".