JUDGMENT OF 29. 9. 1976 -CASE 54/75 DE DAPPER v PARLIAMENT

In Case 54/75

THE COURT composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A.M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and F. Capotorti, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts of the case, the procedure and the submissions and arguments of the parties with regard to the jurisdiction of the Court and the admissibility of the application may be summarized as follows:

I — Statement of the facts

On 18 March 1975 elections for the Staff Committee were held at the European Parliament.

On 19 March 1975 the Committee of Tellers issued a written communication

in connexion with the results of the election. On 4 April 1975 ten officials of the European Parliament, including the three applicants, submitted a complaint to the Chairman of the Committee of Tellers asserting that the elections were unlawful and improper and claiming that they should be annulled.

On 29 April 1975 the Committee of Tellers stated in a written communication to the staff that at its meeting on 22 April it had ‘considered that the election procedure was not unlawful and that such instances of failure to comply with the rules as it had been able to detect did not affect the validity of the elections’; consequently it found unanimously that the elections of 18 March 1975 were valid and confirmed the results.

On 5 May 1975 ten officials of the European Parliament, including the applicants, submitted a complaint to the President of the Parliament concerning the elections to the Staff Committee held on 18 March 1975 requesting him to declare them void. This application was submitted through administrative channels to the President of the European Parliament on 13, 14 and 15 May 1975.

On 30 June 1975 the President of the Parliament informed the signatories of the complaint that the mathematical study entitled ‘Statistical Analysis of the Election Results’ which was annexed to the complaint did not seem adequate and he requested them to ‘provide specific information (witnesses’ statements or other information) as to the facts which enable you to state that one person completed in advance and on behalf of his colleagues between thirty and forty voting papers. This indeed appears to me a decisive factor with regard to the decision which I must take.

Following an exchange of letters and after hearing five witnesses on 25 September 1975 the President of the European Parliament by a decision of 7 October 1975 which was notified to one of the applicants by a letter of 10 October rejected the complaint against the elections to the Staff Committee held on 18 March 1975.

II — Procedure

On 16 June 1975 the three applicants lodged the present application. The application was directed against the failure of the appointing authority to verify the regularity and lawfulness of the elections to the Staff Committee of the Parliament held on 18 March 1975 and to ascertain and confirm the existence of such irregularities and consequendy to annul the election proceedings.

On the same date, 16 June 1975, the applicants lodged an application under Article 91 (4) of the Staff Regulations of Officials for the adoption of interim measures. In particular they claimed that the Court should:

Rule that the Staff Committee which has just taken up its duties must refrain from acting pending a decision on the substance of the case on the basis of the originating application lodged on the same date;

Rule that the Chairman of the Committee of Tellers must deposit the voting papers at present in his custody at the Court Registry for any necessary scrutiny and for checking during the proceedings;

Rule that the Parliament is responsible for suspending the Committee presently holding office and for depositing the voting papers.

On 26 June 1975 the European Parliament submitted its observations on the procedural issues leaving the admissibility and the substance of the application to the Court.

By an order of 2 July 1975 the President of the Second Chamber as an interim decision, after the parties had presented oral argument on the same day, dismissed the application for the suspension of the Staff Committee of the European Parliament, ordered the voting papers to be deposited at the Court Registry and reserved the costs.

On 14 July 1975 the President of the Second Chamber, in pursuance of the second sentence of Article 91 (4) of the Staff Regulations of Officials, suspended proceedings in the main action until such time as an express or implied decision had been taken rejecting the applicants' complaint of 5 May 1975.

On 10 November 1975 the European Parliament informed the Court that on 10 October the applicants had been notified of the decision of the President of the Parliament of 7 October.

The written procedure was resumed and followed its normal course.

By an order of 6 May 1976 the Second Chamber decided pursuant to Article 95 (3) of the Rules of Procedure to refer the case to the Full Court.

The Court, having heard the views of the Adcocate-General, decided to open the oral procedure without a preparatory inquiry.

Nevertheless the Court requested the parties to reply in writing before the opening of the oral procedure to two questions on the jurisdiction of the Court in electoral disputes.

The submissions of the parties concerning the questions of the jurisdiction of the Court and the admissibility of the application were heard on 13 July 1976.

The Advocate-General delivered his opinion on the same questions at the hearing on 22 September 1976.

III — Submissions and arguments of the parties concerning the jurisdiction of the Court and the admissibility of the application

A — The jurisdiction of the Court

The applicants observe that under Article 179 of the EEC Treaty the Court of Justice has 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. This provision confers upon the Court of Justice a general jurisdiction with regard to any dispute between the Community or one of the Community institutions and the staff covered by the Staff Regulations. This general jurisdiction and the jurisdiction with regard to the institutions can be subject to no restrictions other than those following from the ‘limits and … conditions laid down in the Staff Regulations’. No limitation on the jurisdiction of the Court has been provided with regard to the election of staff representatives.

Furthermore neither Article 9 nor Annex II to the Staff Regulations of Officials concerning the Staff Committee limits the general jurisdiction conferred upon the Court by the Treaty.

The Staff Regulations of Officials confer upon each institution the power to determine the Composition and procedure of the Staff Committee. The institution thus has the right and the duty to ensure that the Staff Committee is properly constituted; it is obliged to intervene if it appears that one of the conditions laid down in Annex II regarding the validity of the elections has not been fulfilled.

This finding cannot be affected by the third paragraph of Rule 6 of the Rules on the Representation of the Staff of the European Parliament's Secretariat according to which the Committee of Tellers alone shall be competent to decide all disputes concerning elections to the Staff Committee. This provision only applies internally with regard to the representation itself; it does not relieve the institution of its own rights and duties or take away the Court's jurisdiction.

The Court also has jurisdiction in the present case under Articles 90 and 91 of the Staff Regulations of Officials.

The European Parliament also considers that the Court of Justice has jurisdiction under Article 179 of the EEC Treaty and under Articles 90 and 91 of the Staff Regulations of Officials. On the basis of the provisions of the Staff Regulations concerning the Staff Committee, in particular Article 9 and Annex II, and of the institution's power of organization which also relates to internal bodies of the institutions such as the Staff Committee, the European Parliament must ensure that elections to the Staff Committee are held in accordance with the provisions of the Staff Regulations. It must in particular intervene if the constitution and functioning of the Staff Committee seem adversely affected by failure to observe the rules of the Staff Regulations to which the Committee is subject. On this assumption the applicants are thus entitled to invoke the institution's failure to act when it is alleged that there has been an irregularity in the election procedure.

This alleged failure may also be invoked by any person covered by the Staff Regulations on the basis of the administration's duty of protection and of assistance. This duty, which is established by several provisions of the Staff Regulations and is set out in several national laws, may be stated as a general principle of the law relating to the public service. In view of the many important powers of the Staff Committee the appointing authority is under a duty to ensure that each official is represented by members of a Staff Committee who have been appointed as a result of lawfully conducted elections.

The provision of the electoral rules conferring upon the Committee of Tellers power to decide disputes in connexion with elections to the Staff Committee is clearly limited to internal disputes. This provision cannot exlude either the intervention of the institution, where the election procedure is in breach of the provisions of the Staff Regulations, or any application to the appointing authority and ultimately to the Court of Justice.

In borderline cases arising in disputes with staff the Court of Justice has moreover never hesitated to uphold its own jurisdiction. Finally it must be emphasized that if the Court of Justice does not have jurisdiction in this field no court, national or other has power to settle electoral disputes regarding the appointment of the Staff Committee.

It is necessary therefore to consider that the Court of Justice has jurisdiction over electoral disputes concerning the appointment of the Staff Committee.

B — The admissibility of the application

The applicants reply that Mr De Dapper, who was elected, and the two other applicants are all adversely affected by an election which is invalid because of illegalities and irregularities.

In fact the two applicants other than Mr De Dapper were not elected but, according to the mathematical analyses of the poll they would have had a good chance in the election if it had been lawfully held.

Mr De Dapper's interest was not only to win his election but also to obtain the number of votes corresponding to the number of officials who support him and his aims with regard to union matters. The number of votes obtained by a candidate is not a matter of indifference particularly as the confidence of the staff union which he represents on the Staff Committee corresponds more or less to the number of votes cast in his favour.

On any view all members of the staff are adversely affected by irregularities and illegalities which invalidate the poll and which mean that the committee so elected is not really representative of the staff as a whole.

The European Parliament observes that only measures directly affecting the rights of the applicant can be considered as having an adverse effect.

Two of the applicants who were candidates for the Staff Committee were not elected. If the irregularities of which they complain had not occurred they would certainly have had a chance of election. This finding constitutes a sufficient basis for conceding that the contested measure adversely affects them.

On the other hand Mr De Dapper, one of the applicants, was elected. His only complaint is that, as a result of the said irregularities, he obtained fewer votes so that his position, in accordance with the number of votes which he actually received, is less favourable than it should be. The applicant's reasoning on this point is scarcely open to dispute; his application must thus be considered as admissible.

Moreover certain national courts of the Member States recognize the positive right of any elector to contest the validity of elections.

In those circumstances it must be conceded that the three applicants are entitled to submit the present application.

Law

1. The application is for the annulment of the elections to the Staff Committee of the European Parliament held on 18 March 1975 because of alleged irregularities in the election proceedings.

2. By an order of 6 May 1976 the Second Chamber referred the case to the Full Court in view of the questions of principle involved in the admissibility of the application, in the absence of any express provision in the Staff Regulations concerning electoral disputes with regard to the appointment of staff committees.

3. In order to settle that question the Court requested the parties to give fuller details of their views on the jurisdiction of the Court in this sphere and to state how an application of this nature can come within the framework of the procedures laid down by the Staff Regulations.

4. In reply to the questions put the Parliament stated that it considers that the institutions have the right and duty to ensure the regularity of elections to the Staff Committee and to intervene if the electoral rules have not been observed.

5. According to the Parliament that right and duty are based both on the express provisions of the Staff Regulations and on the general power of organization enjoyed within its sphere by each institution and on its duty to protect and assist its officials and other servants.

6. Finally the Parliament further states that if the Court finds that the contested elections were irregular it will take appropriate steps to ensure execution of the judgment of the Court and that it considers that it has all the powers necessary for this purpose.

7. For their part the applicants, for similar reasons, have recognized the jurisdiction of the Court.

8. Since in the Staff Regulations there are no express provisions on the review of elections to the Staff Committee the question whether the Court of Justice has jurisdiction in this sphere must be settled within the framework of the general provisions on applications by officials having regard to the position of the Staff Committee under the Staff Regulations.

9. Under Article 9 of the Staff Regulations a staff committee is to be set up within each institution.

10. In accordance with Article 9 (2) the composition and procedure of this body shall be determined by each institution in accordance with the provisions of Annex II to the Staff Regulations.

11. Under Article 9 (3) the general task of the Staff Committee is to represent the general interests of the staff vis-à-vis their institution, maintain continuous contact between the institution and the staff and contribute to the smooth running of the service.

12. Within the context of this general task the Staff Committee plays a very important part in the administration of the institutions.

13. In particular it participates in the constitution and functioning of the various internal bodies of the institutions such as the Joint Committee, selection boards for competitions, Disciplinary Boards and social welfare bodies set up by the institution in the interests of its staff as well as in the activities of the Staff Regulations Committee in relations between the institutions.

14. Under Article 1 of Annex II every official in the institution together with the servants referred to in the first paragraph of Article 7 of the Conditions of Employment of Other Servants shall be entitled to vote in elections and stand for election to the Staff Committees.

15. Although Article 1 of. Annex II leaves it to the general meetings of staff of the various institutions to lay down the manner in which the elections are held it nevertheless imposes certain specific rules in this connexion.

16. Thus the second paragraph of Article 1 provides that election shall be by secret ballot, the fourth paragraph provides that the election rules must be fixed in such a way that the various categories of officials are represented whilst the fifth paragraph provides that elections shall be valid only if two thirds of the officials entitled to vote take part and that if this proportion is not attained a second vote shall be held.

17. Even though these provisions are incomplete, taken as a whole they show that they were intended to ensure that the Staff Committee is representative.

18. Such a representative character can only be ensured by means of elections the legality of which is guaranteed at all stages of the election proceedings.

19. These findings however leave open the question of the legal remedies by which the legality of elections may be reviewed.

20. Since the Staff Committee is an internal body of its institution and is closely associated with the preparation of measures taken by the institution relating to the Staff Regulations and personnel management, review by the Court can only be envisaged within the framework of applications directed against the institution concerned.

21. The existence of such an application depends upon whether the institution has the right and the duty to intervene if the elections to the Staff Committee are open to dispute.

22. Such a duty in fact follows from Article 9 (2) of the Staff Regulations and, in general, from the power of organization which each institution exercises within its own sphere of jurisdiction and from its duty to ensure that officials have complete freedom to choose their representatives in accordance with democratic rules.

23. It follows from this that institutions are not only entitled to intervene of their own volition when they have doubts as to the legality of elections to the Staff Committee but must in addition settle complaints which may be submitted to them in this connexion under the procedure laid down by Articles 90 and 91 of the Staff Regulations.

24. Thus the Court 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 in pursuance of Article 179 of the EEC Treaty.

25. Within this framework the Court is required to examine, in accordance with its general task under Article 164 of the EEC Treaty and the parallel provisions of the ECSC and EAEC Treaties, all objections raised against elections having regard to the rules relating to freedom and democracy common to all the Member States in matters of electoral law.

26. The admissibility of the application must be appraised according to the foregoing principles.

27. It cannot be doubted that the applicants, who were at the same time voters and candidates in the contested elections, are qualified to bring their action and have a legal interest in doing so.

28. With regard to the formalities and periods for lodging applications prescribed by Articles 90 and 91 of the Staff Regulations it is clear from the file that the elections in question were held on 18 March 1975 and that the applicants submitted an initial complaint to the Chairman of the Committee of Tellers as early as 4 April 1975.

29. When the Chairman dismissed their complaint they drew up a complaint on 5 May 1975 to the President of the European Parliament which was notified in the course of 13, 14 and 15 May.

30. The application to the Court accompanied by an application for the adoption of interim measures was lodged on 16 June 1975 in accordance with the provisions of Article 91 (4) of the Staff Regulations.

31. Subsequently the President of the European Parliament conducted an investigation which led him to notify the applicants by a letter of 7 October that he considered their complaint unfounded in the light of the examination he had made.

32. In those circumstances the admissibility of the application cannot be contested with regard to the requirements as to form and as to the period for lodging an application prescribed by Articles 90 and 91 of the Staff Regulations.

33. The case must be remitted to the Chamber which has jurisdiction for the purposes of examination and a decision on the substance.

Costs

34. The costs must be reserved.

On those grounds, THE COURT hereby:

1 Declares the application admissible;

2 Orders the case to be remitted to the Second Chamber for the purposes of examination and a decision on the substance;

3 Reserves the costs.