ORDER OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

19 July 2011

Case F-105/10

Eberhard Bömcke

v

European Investment Bank

(Intervention – Inadmissibility of the main proceedings – Capacity to bring legal proceedings – Purpose of the intervention – Interest in intervening – Compulsory resignation of a staff representative – Authority to act ad litem)

Application: brought under Article 270 TFEU and Article 41 of the Staff Regulations of the European Investment Bank, in which Mr Bömcke seeks, principally, annulment of the decision of 12 October 2010 effecting his compulsory resignation from his duties as a staff representative.

Held: The application to intervene by the College of Staff Representatives of the European Investment Bank (EIB) is dismissed. Mr Bodson, Mr Kourgias, Mr Sutil and Mr Vanhoudt are allowed to intervene in Case F-105/10 Bömcke v EIB in support of the forms of order sought by the EIB. The applications by Mr Bömcke and by the EIB for the confidential treatment of certain documents or sections of documents in the file are provisionally granted. The Registrar will send to the parties allowed to intervene a non-confidential version of each procedural document served on the parties. The parties allowed to intervene will be given a time-limit for submitting any objections to the application for confidential treatment. The decision on the merits of that application is reserved. The parties allowed to intervene will be given a time-limit for submitting a statement in intervention, without prejudice to the possibility of supplementing it at a later stage, if appropriate, following a decision on the merits of the application for confidential treatment. The College of Staff Representatives of the EIB is to bear its own costs. The costs incurred by the applicants are reserved.

Summary

1. Procedure – Intervention – Effects of the inadmissibility of the main action

2. Procedure – Application for leave to intervene – Formal requirements – Forms of order sought in support of or opposing the forms of order sought by the applicant

(Rules of Procedure of the Civil Service Tribunal, Arts 109(2)(e) and 110(4))

3. Procedure – Intervention – Persons having an interest – College of Staff Representatives of the European Investment Bank – Lack of capacity to be a party to legal proceedings – Inadmissibility

4. Procedure – Intervention – Conditions for admissibility – Direct and existing interest – Contested elections for staff representatives of an institution – Status of voter

1. Although an application to intervene may be dismissed where a main action is such that it must be declared inadmissible without consideration of the merits, that outcome is based on the premiss that the main action is manifestly inadmissible.

(see para. 6)

2. The conditions for the admissibility of an application to intervene are laid down in Article 109 of the Rules of Procedure of the Civil Service Tribunal, paragraph 2(e) of which provides that an application to intervene must contain the form of order sought by the intervener, in support of or opposing the form of order sought by the applicant. Since Article 109 of those rules does not require a party seeking to intervene to state the pleas in law and arguments on which he relies, that provision must be understood to require only that the application should, from a formal point of view, indicate the party in support of which the applicant wishes to intervene. However, once leave is given to intervene, the forms of order sought by an intervener may be declared inadmissible on the basis of Article 110(4) of the Rules of Procedure, on the ground that they do not really support, in whole or in part, the forms of order sought by one of the parties.

(see para. 8)

3. A third party may be allowed to intervene only if he has the capacity to be a party to legal proceedings. With regard to persons other than individuals, as is the case with the College of Staff Representatives of the European Investment Bank, the case-law recognises their capacity to be a party to legal proceedings if they have either legal personality in accordance with the law governing their constitution, or, at the very least, elements forming the basis of legal personality, in particular if they are an independent entity with liability, however limited.

Even if the rules applicable to the European Investment Bank recognise the existence of the College of Staff Representatives, it is clear from those rules that the College assumes the duties conferred on the Staff Committee in institutions governed by the Staff Regulations of Officials. The nature of the Staff Committee is that of an internal agency of its institution and it therefore has no capacity to be a party to legal proceedings. Since there is no provision applicable to the College of Staff Representatives which justifies a different ruling on the subject, it must be regarded as having no capacity to be a party to legal proceedings.

(see paras 14-16)

See:

14 November 1963, 15/63 Lassalle v Parliament, para. 3; 8 October 1974, 175/73 Union syndicale – Service public européen and Others v Council, para. 9; 28 October 1982, 135/81 Groupement des Agences de voyages v Commission, para. 9

11 July 1996, T-161/94 Sinochem Heilongjiang v Council, para. 31

4. As far as concerns the staff representation bodies of an institution, every voter has a direct and existing interest in the elections being held in conditions and according to voting arrangements which comply with the provisions of the Staff Regulations governing voting procedure in this context, which necessarily entails an interest in observance of the duration of the term of office of elected representatives, especially as the end of a staff representative’s term of office results, as a matter of principle, in the holding of elections. In a dispute concerning the compulsory resignation of a staff representative, therefore, a staff member, by virtue of being entitled to vote, has an interest which is sufficient to render an application or intervention admissible. The mere fact that the applicant is a person entitled to vote is sufficient to establish that he is not acting merely in the interests of the law or of the institution.

(see paras 23, 24)

See:

25 October 2007, F-71/05 Milella and Campanella v Commission, para. 47 and the case-law cited therein