CELEX: 61975CC0054
Language: en
Date: 1976-09-22
Title: Opinion of Mr Advocate General Mayras delivered on 22 September 1976. # Raphaël de Dapper and others v European Parliament. # Case 54-75.

OPINION OF MR ADVOCATE-GENERAL MAYRAS
   DELIVERED ON 22 SEPTEMBER 1976 (
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      Mr President,
   
      Members of the Court,
   In the present application ‘directed against the failure of the appointing authority to verify the regularity and the lawfulness of the elections’ which took place at the European Parliament on 18 March 1975 for the appointment of a new staff committee, the applicant and two of his colleagues request you to annul the elections to that socio-vocational body.
   Since the Court has requested the parties to restrict their submissions to questions concerning the jurisdiction of the Court and the admissibility of the application I shall at this stage limit my remarks to those two topics.
   
            I —
         
         
            The provisions relating to the Court do not contain any clause expressly conferring upon it jurisdiction in disputes arising from elections to such socio-vocational bodies within the Community institutions.
            Nevertheless it seems to me that Article 179, a general provision, can form the basis for the settlement by the Court of such disputes: The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment'.
            Whilst the European Parliament is not directly concerned in the procedure for the election of the Staff Committee and whilst it must not interfere with that procedure it clearly has an interest in the valid appointment of that body.
            In fact the functions of the Staff Committee as provided for in Article 9 (3) of the Staff Regulations ‘are secondary to the activity of the institution’; ‘the nature of the Staff Committee is that of an internal agency of its institution’ (Order of 14 November 1963, Lassalle v European Parliament, [1964] ECR 51).
            Article 9 (2) of the Staff Regulations empowers each institution to determine the composition and procedure of the Staff Committee. The institution thus has the right and duty to ensure that its Staff Committee is properly constituted. It is bound to intervene if it appeals that there has been a failure to comply with one of the conditions laid down by Article 1 of Annex II which determines the composition and procedure of the bodies provided for in Article 9 of the Staff Regulations.
            The same must hold good regarding the election procedure itself and the validity of the elections to the Staff Committee. Whilst, in accordance with the rules on staff representation it is primarily for the Committee of Tellers to settle complaints concerning the election procedure, the appointing authority must ultimately be responsible to the staff as a whole for the regularity of that election procedure.
            The European Parliament has the power and the duty to review the manner in which the Staff Committee was elected and on at least one occasion in the past it has exercised this power. Moreover, the President of the European Parliament fulfilled his duties by expressly replying to the applicants' complaint on 7 October 1975, although he rejected it.
            In the context of the review by the Court this authority is the ‘natural defendant’ and not the committee elected as a result of the contested election, which, in accordance with the order in the Lassalle case, has no capacity to bring legal proceedings, or the Committee of Tellers.
            Only selection boards in competitions differ in this respect and the Court ruled in its decision of 14 June 1972, in the Marcato case ([1972] ECR 433) that ‘the only legal remedy open to individuals in relation to such a decision [of a selection board in a competition adversely affecting them] lies in an application to the Court which alone has jurisdiction to annul such decisions’.
            I should like to add for good measure that if the Court of Justice had no jurisdiction it would be difficult to imagine what other court could take cognizance of a case such as this. The judgment of this Court of 15 June 1976(Mills v European Investment Bank) concerns a case of the same nature.
            Finally no particular difficulty seems to arise in connexion with the consequences of a judgment which might find that the election was improper: the matter would be referred to the European Parliament which would be obliged to take the necessary steps to execute the judgment of the Court. Of course, if an irregularity affecting the validity of the elections is only found after the mandate of the irregularly elected Staff Committee has expired and if 'the nullity of the elections of 18 March 1975 will not necessarily involve the nullity of the proceedings in which the Staff Committee is called upon to act under the Staff Regulations', as the President of the Second Chamber ruled in the order of 2 July 1975, the effect of such a finding may well remain somewhat academic. However this merely emphasizes the need to settle such disputes rapidly especially as it is still possible to begin an action for damages and indeed such proceedings have already been instituted.
         
      
            II —
         
         
            With regard to the periods for lodging applications the three applicants lodged in good time a complaint with the Committee of Tellers which rejected it on 22 April 1975. On 5 May 1975 those same persons submitted to the President of the European Parliament through official channels a complaint against such rejection within the meaning of Article 90 (2) of the Staff Regulations. On 16 June 1975, the applicants lodged this application.
            On 14 July 1975 the President of the Second Chamber ordered, pursuant to the second sentence of Article 91 (4), that the proceedings in the main action should be suspended until such time as an express or implied decision rejecting the complaint had been taken.
            When, on 10 October 1975, one of the applicants was notified of a decision of the President of the European Parliament of 7 October whereby the complaint was expressly rejected, the procedure resumed its normal course.
            I thus consider that, with regard to the periods for lodging applications, the application complies with the provisions of Article 90 in conjunction with Article 91.
            As they are presently worded Articles 90 and 91 of the Staff Regulations are solely directed towards the settlement of individual proceedings initiated by officials and other servants. Ultimately the present dispute is of a collective nature since in fact it brings into conflict unions interposed by the applicants and the defendant. However, although the applicants are all affiliated to a union they are nevertheless persons covered by the Staff Regulations; as voters or candidates properly registered and eligible or even elected, they are entitled to contest the validity of the elections whether they were elected or not: in fact the number of votes obtained by a candidate bears a direct relation to his representative character.
            With regard to the nature of the contested measure a distinction is drawn in the case-law of this Court between measures concerning the position of applicants under the Staff Regulations and internal relationships within the service. With regard to the latter, the Court held in the Hirschberg (nee Nemirovsky) case (Judgment of 14 July 1976) that “the grievances expressed in the complaint do not concern the position [of the applicant] under the Staff Regulations, but exclusively internal relationships within the service and, more particularly, questions of administrative and working organization in the offices [of the Commission]”. However, whilst the rights of the applicants “under the Staff Regulations” are not strictly speaking affected by the manner in which the elections to the Staff Committee are held, the officials and servants of an institution, like the institution itself, have an interest in the proper appointment and composition of administrative bodies. The decision whereby the Committee of Tellers dismissed the applicants' complaint adversely affected them; consequently they had the right and the duty (Article 91 (2)) to submit an initial complaint to the appointing authority if they wished to bring the matter before the Court. In its turn the decision rejecting their complaint taken by the President of the Parliament, the authority who must ultimately ensure the proper application of the provisions of Article 9 of the Staff Regulations in conjunction with those of Article 1 of Annex II thereto, adversely affects the applicants and may be brought before this Court.
         
      I am thus of the opinion that this Court should declare that it has jurisdiction to decide the present dispute, that the application should be declared admissible and that the costs relating to this stage of the procedure should be borne by the European Parliament.
   (
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      )	Translated from the French.