ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)

3 October 1997

Case T-184/96

Eric Banda

v

Commission of the European Communities

‛No need to adjudicate — Inadmissibility’

Full text in French II-819

Application for:

annulment of the Commission's decision by which it decided to invalidate the regional elections held between 5 and 20 December 1994 for the local staff serving in Geographical Region No 11 and to hold them again and, in the alternative, for annulment of the Commission Rules of 8 March 1990 entitled ‘Transitional Arrangements for the representation of staff serving outside the Community’ and of the regional elections held between 4 and 15 November 1996 for the local staff serving in Geographical Region No 11.

Decision:

No need to adjudicate.

Abstract of the Order

Between 5 and 20 December 1994 elections were held in the various Commission delegations for local and regional representatives of staff serving outside the Community pursuant to the Rules establishing transitional arrangements for the representation of staff serving outside the Community (Transitional Rules). In Geographical Region No 11, which includes Botswana, Lesotho, Malawi, Mozambique, Namibia, the Republic of South Africa, Swaziland, Tanzania, Zambia and Zimbabwe, those elections were held on 11 December 1994.

The applicant, a member of the local staff of the Commission delegation in Malawi, and a member of a trade union and professional organization, stood as a candidate in the elections in Geographical Region No 11.

On 13 February 1995, the election committee set up by paragraph 1.6 of the Transitional Rules (election committee) decided not to recognize the results of the regional elections of local staff in Mozambique, Namibia and Zambia, for two reasons, namely, that the ballot papers for Mozambique were not delivered in time and ballot papers which did not give the names of all the candidates were used in all three countries. However, the election committee declared the applicant elected as regional representative of local staff in Geographical Region No 11.

By note of 19 May 1995, registered that day under number R 532/95, Mrs Isabel Almeida, a member of the Commission's local staff in Mozambique and herself a candidate in the regional elections for local staff in Geographical Region No 11, submitted a complaint to the Commission against the election committee's decision of 13 February 1995.

In an undated letter to Mrs Almeida, the Commission upheld her complaint and decided to annul the regional elections for local staff in Geographical Region No 11, including the applicant's election, and to hold them anew ‘because of irregularities in the voting procedure in the above three delegations’. The reason given for the decision was that ‘as the results of the other delegations have already been published, they might influence the outcome of the elections in these three delegations’

By note of 14 March 1996, registered on 18 March 1996 under number R 352/96, the applicant lodged a complaint against the Commission's decision upholding Mrs Almeida's complaint (No R 532/95).

The Commission rejected that complaint by decision dated 8 August 1996, receipt of which was acknowledged by the applicant on 19 August 1996.

Fresh regional elections for local staff in Geographical Region No 11 were held between 4 and 15 November 1996. The applicant again stood as a candidate, by notice of candidature dated 17 September 1996.

By application lodged at the Court Registry on 18 November 1996, the applicant brought this action.

On 12 December 1996, the election committee again declared the applicant elected as the (sole) regional representative of local staff in Geographical Region No 11.

On 19 February 1997, the Commission lodged with the Court Registry an application under Article 114 of the Rules of Procedure asking the Court of First Instance to rule that there is no need to adjudicate on the case.

Law

Under Article 113 of the Rules of Procedure, when giving its decision in accordance with Article 114(3) and (4), the Court of First Instance may at any time of its own motion consider whether there exists any absolute bar to proceeding with an action, which, according to established case-law, would include any such bar deriving from the conditions of admissibility of an action laid down by Articles 90 and 91 of the Staff Regulations of Officials of the European Community (Staff Regulations) (paragraph 26).

See: T-37/93 Stagakis v Parliament [1994] ECRSC II-451, para. 17; T-99/95 Stött v Commission [1996] ECRSC II-1583, paras 22 to 23

The Community judicature has jurisdiction in electoral disputes concerning the appointment of staff committees on the basis of the provisions relating to applications by officials which are laid down by the Staff Regulations. That judicial review is carried out in connection with actions brought against the institution concerned regarding the acts or omissions of the appointing authority arising from the exercise of its supervisory function. In this dispute, the interest in bringing proceedings of a member of the local staff, who is a candidate in the election and a member of a trade union and professional organization which put forward a list of candidates, must be assessed in the light of his three different roles as a voter, a candidate and a member of the organization concerned (paragraphs 29 to 32).

See: 54/75 De Dapper and Others v Parliament [1976] ECR 1381; 146/85 and 431/85 Dtezler and Others v ESC [1987] ECR 4283, paras 5 and 9; Opinion in Dtezler and Others v ESC, cited above, [1987] ECR 4298, 4301; T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595, para 20; T-368/94 Blanchard v Commission [1996] ECRSC II-l, para. 37

In the first place, this case does not involve a ballot based on lists but a vote for individual candidates. The applicant therefore has no interest in bringing proceedings in his capacity as a member of a trade union and professional organization which has put forward a list, and to the extent that his application was made in that capacity, it must be dismissed as inadmissible (paragraph 34).

Second, in the election of December 1994, the applicant was declared elected. He does not therefore have any interest in bringing proceedings as a candidate, and there is no need to rule on the main claim made by him in that capacity (paragraph 35).

Third, the interest the applicant may have simply in his capacity as voter consists in seeing his representatives on the Staff Committee elected under conditions and on the basis of an electoral system which comply with the Staff Regulations to which the electoral procedure is subject. In terms of procedure, that interest finds expression only in the alternative claim seeking the annulment of the Transitional Rules and the November 1996 elections. It is thus only in connection with that alternative claim that the question of the applicant's interest in bringing proceedings in his capacity as a voter arises. Although the applicant has an interest in bringing proceedings in that capacity, it is still necessary to assess the admissibility of his alternative claim seeking annulment of the Transitional Rules and of the November 1996 elections organized on the basis of those rules (paragraphs 36 to 39).

As regards, first, the application for annulment of the Transitional Rules, even if the contested measure, which is in the nature of a regulation, could be the subject of such an application to the Court, that application should, in any event, meet the conditions as regards form and time-limits laid down in Articles 90 and 91 of the Staff Regulations (paragraph 40).

See: 153/79 Bowden and Others v Commission [1981] ECR 2111, para. 13; T-14/91 Weyrich v Commission [1991] ECR II-235, para. 46; T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [1994] ECRSC II-511, para. 41

The applicant's complaint against the Transitional Rules, published in the Administrative Notices of 30 March 1990, was not referred to the appointing authority until 18 March 1996 (paragraph 41).

Moreover, the applicant's alternative claim for the annulment of the November 1996 regional elections was brought directly before the Court of First Instance without being preceded by an official complaint (paragraph 42).

A prior official complaint is necessary in electoral disputes concerning the appointment of staff committees of the Community institutions (paragraph 43).

See: De Dapper and Others v Parliament, cited above, paras 28 to 32; Diezler and Others v ESC, cited above, para. 7; T-65/91 White v Commission [1994] ECRSC II-23, paras 91 and 92

The alternative claim in the application for the annulment of the Transitional Rules and the regional elections for local staff in Geographical Region No 11 between 4 and 15 November 1996 must be dismissed as clearly inadmissible (paragraph 44).

Operative part:

There is no need to adjudicate on the application for annulment of the decision of the Commission invalidating the regional elections held between 5 and 20 December 1994 for local staff in Geographical Region No II and requiring the elections to be held again, lodged by the applicant in his capacity as a candidate.

The remainder of the application is dismissed as inadmissible.