2.

In the present case it has to be decided whether unions have the right to ‘be party to legal proceedings’ before the Court. In reaching this decision the Court must carefully distinguish between the right to appear as an intervener and the right to bring the application. I believe it is quite possible that unions can take part in proceedings before the Court of Justice as interveners. Whereas Article 34 of the Protocol on the Statute of the Court of Justice of the ECSC states that natural or legal persons establishing an interest in the result of any case submitted to the Court may intervene in that case, Article 37 of the Protocol on the Statute of the Court of Justice of the EEC and Article 38 of the Protocol on the Statute of the Court of Justice of the EAEC lay down, after especial mention of the Member States and institutions of the Community, whose right of intervention appears to be unlimited, that the same right shall be open to any other person establishing an interest in the result of any case submitted to the Court, save in cases between Member States, between institutions of the Community or between Member States and institutions of the Community. These Articles doubtless also apply to staff cases, which are dealt with in the Treaties themselves (Article 179 EEC Treaty, Article 152 EAEC Treaty) and in the Staff Regulations, as a special implementing Regulation, Article 91 (5) of which settles the details. The question whether, according to these provisions, the right to intervene is also enjoyed by unions, appears to me to have been answered in part by the earlier case law of the Court of Justice. First, the right of associations to intervene was confirmed (Order of 24 October 1962 in Joined Cases 16 and 17/62 — Confédération nationale des producteurs de fruits et légumes and 3 other applicants v Council of the EEC, Rec. 1962, p. 999). This decision was based on the fact that the expression ‘any other person’ was ‘intended in its very widest possible sense’. This does not mean that it is open to any legal entity, however constituted, to appear as intervener; it was very rightly pointed out (in the Order of 14 November 1963 in Case 15/63 — Claude Lassalle v European Parliament, Rec. 1964, p. 109) that ‘it is not to be assumed that the authors of the Treaties wished to extend the opportunities to intervene to the point of allowing intervention by entities lacking legal personality or even its basic aspects’. The judgment continues that ‘these aspects include independence and responsibility even if limited’. These conditions are fulfilled by unions such as the Union Syndicale, as I have previously described it. Accordingly, intervention by the Union Syndicale would have been quite possible in this case. However, the Union Syndicale chose to act differently. It brought an application in its own name. We must therefore consider whether and under what circumstances it is admissible for a union to bring an application in its own name. Comparative jurisprudence allows us to make a concise but exact survey of the way this problem is solved in those Member States whose public service is organized according to legislation which is more or less equivalent to the Staff Regulations of our Communities. Let me begin with the most restrictive solutions and conclude with the widest ones. The view seems to have gained acceptance everywhere that unions may be parties to proceedings before the courts. According to the country, discussion of the right of action includes mention of the extension of legal capacity, of entitlement to bring an action, of the right or legitimate interest in an action etc. We will remain in the practical sphere and consider the facts. In the Netherlands the unions would certainly have no right of action in a case similar to that under consideration. In the Federal Republic of Germany the right of action of unions in defined, exhaustively enumerated cases is expressly laid down by law. In the majority of States the interest to be established must be a collective interest and not a personal interest. Thus, in particular in Great Britain, a union which is a party to a contract between employer and employee has a right of action, whether the contract is required by law or is the result of negotiations between the parties. In general terms, a union often has a right to be a party to legal proceedings only insofar as it is simply a matter of protecting the interests of the ‘association’ formed by its members; this is so in Italy, in Luxembourg, in Ireland and in Denmark. The right of action seems to be widest in France. In that country a union can challenge an individual act, not when it has direct effect only with regard to a single party, but when it adversely affects all those union members who would have benefited from an act which was not adopted (Decision of the Conseil d'État of 12 June 1959, Syndicat chrétien du Ministère de l'Industrie et du Commerce, published — with the opinion of Mr H. Mayras — in the Recueil Lebon, p. 360). And finally, in Belgium, since 1967 (following a Decision of the Conseil d'État of 12 July 1967, Case law of the Conseil d'État p. 71) a decision can be injurious to the collective interests represented by a union, even if that decision is given in an individual case, when it is bound to affect, albeit only at some future date, several members of the group of persons represented by the union. It is clear that only in Belgium — where the cited case law was sharply criticized — would the Union Syndicale's action have had a small chance of being declared admissible. Everywhere else the right of action of unions is limited in its extent by the fact that the legal personality attributed to the unions is purely functional and only operates to the extent necessary to achieve the aims which the legislature and the courts jointly acknowledge to be normal for a union. The right of action therefore everywhere reflects the conception which is held of the unions, of their power to represent interests and their role in social life. It may be concluded from this that there is no such thing within the European Communities as an actio popularis brought by the unions for the representation of the interests of employees, but rather that there is general acceptance that unions can only appear before the courts in cases where there is a threat to the interests on account of which and for the protection of which they were established. If we apply this information to the case in hand we must conclude that the Union Syndicale, the representative nature of which is not in dispute, has brought an application with the object of annulling individual acts. If this application demonstrates an infringement of the Staff Regulations, it does so for the protection of the particular interests of two persons who have brought applications on their own behalf, those applications being admissible. In that case, where does the collective interest lie? Does it lie in the denunciation of behavior, the repetition of which would represent an ever-increasing infringement of the Staff Regulations? But such an interest is purely hypothetical; until the contrary is proved, it has not arisen and does not exist. For example, if the Council had made a unilateral decision to conduct appointment procedures generally in a way which differed from that laid down in the Staff Regulations, the position would be completely different. The question would then arise whether the Union Syndicale had a collective interest to represent and protect. That is however a purely hypothetical case. I would finally put forward one further consideration, namely that the admission of applications brought by the unions on behalf of their members in pursuance of personal interests might restrict the freedom of officials to decide whether in fact they wish to undertake proceedings against a decision of their employers. This seems to me incompatible with the right of self-determination. There remains to discuss a possibility which was briefly touched upon in the oral procedure: can one regard the Union Snydicale's application as a mere ‘subsidiary application’, joined to those of the two applicant officials Massa and Schots, and therefore place less emphasis upon the requirements as to admissibility? In my view this cannot be so, since the Treaties, the Protocols on the Statute of the Court of Justice and our Rules of Procedure do not envisage such a possibility, and to introduce, by means of Judge-made law, a possibility, the effects of which cannot be accurately forecast, would be a hazardous way to introduce innovations. Moreover, the possibility of intervention already exists for this purpose, under the conditions outlined above.