Report for the Hearing delivered in Joined Cases 146 and 431/85
I — Facts and procedure
1. By Decision No 1896/75A of 28 July 1975 the Bureau of the Economic and Social Committee (hereinafter referred to as ‘the ESC’) adopted the provisions governing the composition and procedures of the Staff Committee of that institution. Under the first paragraph of Article 5 of Decision No 1896/75A, ‘the members of the Staff Committee shall be elected in accordance with the conditions laid down by the general meeting of officials of the Economic and Social Committee, which must be held not later than one month before the expiry of the term of office of the outgoing committee. ...’ The system and conditions for holding elections to the Staff Committee were last laid down by the ‘Rules for Elections to the Staff Committee’ (Document CP 153/83 of 4 March 1983), which set up a proportional voting system known as ‘SUPAR’ (‘scrutin uninominal préférentiel avec report de voix’ (a single transferable vote system)). At a general meeting of the staff, called on 21 March 1985 and held on 25 March 1985, with an agenda dealing inter alia with the appointment of an Election Board in anticipation of elections to the new Staff Committee, to replace the outgoing committee whose term of office was due to expire on 20 April 1985, the ESC section of the Union syndicale (European Public Service Union), a trade union for Community officials, proposed the amendment of the electoral rules in force. The staff meeting to deal with that point was adjourned until 19 April 1985. The general meeting of staff, held on that date, did indeed adopt an electoral system of the first-past-the-post variety by 76 votes in favour, 42 against and 9 abstentions. The general meeting further decided by 59 votes in favour, 44 against and 11 abstentions that the new electoral system would be immediately applicable in view of the forthcoming elections to the Staff Committee.
2. Case 146/85: on 22 April 1985 the fourth applicant, Mr Helmut Müllers, acting on behalf of his trade union, the ESC section of the FFPE (European Civil Service Federation), submitted to the Chairman of the ESC a request to the effect that the amendment of the electoral rules was unlawful because the staff meeting which adopted it had been held the day before the term of office of the outgoing Staff Committee had expired, whereas it should have been held at the latest one month prior thereto, in accordance with Article 5 of Decision No 1896/75A, quoted above. The applicant accordingly requested the Chairman of the ESC to draw the attention of the Chairman of the Election Board, who was appointed by the general meeting of 19 April 1985, to the fact that the elections to the Staff Committee for the years 1985-87 should take place in accordance with the prevailing electoral system as contained in the ‘Rules for Election to the Staff Committee’, Document CP 153/83 of 4 March 1983. By letter of 24 April 1985 the Chairman of the ESC refused to accede to that request on the ground that, notwithstanding the powers of the ESC and its obligation to supervise the preparation and conduct of the elections of staff representatives, the decision which he was being asked to take exceeded the limits of those powers, as it could influence the outcome of the elections. None the less, according to a staff memorandum from the Secretary-General of the ESC dated 25 April 1985 the need to observe the period laid down by Article 5 of Decision No 1896/75A made it necessary to postpone the elections and to keep the outgoing Staff Committee in office until the new committee was installed. The elections to the Staff Committee, set for 10 June 1985, were therefore postponed until 14 June 1985. On 17 May 1985 the applicants brought an action before the Court against the ESC for annulment both of the rules adopted by the general meeting of the staff on 19 April 1984 and of any subsequent step taken in pursuance of those rules, and also of the refusal by the Chairman of the ESC on 24 April 1985 to take the steps requested on 22 April by the fourth applicant, Mr Mullers. By an application lodged on the same date, the applicants asked the Court by way of an interim measure to make an order suspending the holding of elections to the Staff Committee until it had delivered its judgment. By order of 11 June 1985 the President of the Third Chamber of the Court ordered an adjournment of elections to the Staff Committee pending delivery of the judgment in the main proceedings. On 20 June 1985 Mr Fabrizio Grillenzoni and four other officials of the ESC applied to the Court, pursuant to Article 93 of the Rules of procedure, to intervene in support of the ESC's conclusions. By order of 26 September 1985 the Court allowed the applicants to intervene, and they submitted their written observations in a statement dated 19 November 1985.
3. Case 431/85 : the five applicants, acting as officials of the ESC and thus entitled to vote and stand for election to the Staff Committee, and of whom the first, third and fifth were candidates for the elections due on 14 June 1985, lodged at the Secretariat of the ESC on 18 July 1985 a complaint addressed to the Chairman, Secretary-General and appointing authority of the ESC; the complaint sought a declaration that the electoral rules adopted on 19 April 1985 were null and void, and it asked that the Chairman of the Election Board should be informed that they could not be applied to the elections to the Staff Committee. By a memorandum of 29 October 1985, notified to the complainants on 6 November 1985, the complaint was rejected as inadmissible on the ground that the administrative procedure thereby commenced duplicated the administrative procedure and ensuing action before the Court in Case 146/85. Following that rejection the applicants lodged their application at the Court Registry on 23 December 1985. By a statement dated 5 February 1986 the ESC objected that the application in Case 431/85 was inadmissible on the ground of lis pendens, since the applicants, the defendant, the purpose of the action, the arguments and the conclusions of the parties were identical to those in Case 146/85. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court, by a decision of 25 June 1986, reserved its decision on the question of inadmissibility for the final judgment. On 30 January 1986 Mr Fabrizio Grillenzoni and the four other officials of the ESC intervening in Case 146/85 again applied to the Court to intervene, pursuant to Article 93 of the Rules of Procedure, in support of the ESC's conclusions. By an order of 25 June 1986 the Court allowed the intervention, and the interveners submitted their written observations by memorandum of 9 September 1986.
4. By order of 25 June 1986 the Court ordered that the two cases be joined for the purposes of the oral procedure and the final judgment. In both cases the written procedure followed the normal course, closing with the lodging of rejoinders on 23 August 1985 in Case 146/85 and on 21 October 1986 in Case 431/85. In the context of Case 146/85 the Court requested the ESC to forward a document to it and asked both parties to reply to certain questions, which they did within the appointed period. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.
II — Conclusions of the parties
A — Case 146/85
5. The applicants claim that the Court should: (1) Declare null and void the regulation or text adopted by the general meeting of the staff of the Economic and Social Committee held on 19 April 1985 (Communication No 25/85 of the Staff Committee of 22 April 1985); (2) Declare null and void all subsequent steps taken by way of implementation of the text, in particular the elections to the Staff Committee due to take place on 10 June 1985; Declare null and void all appointments made by the Staff Committee of persons to the bodies provided for in the fourth subparagraph of Article 9 (3) of the Staff Regulations of Officials and in Articles 9 (4) and (5) and 10 thereof, to the bodies provided for in Sections 2, 3, 4 and 5 of Annex II to the Staff Regulations, to the selection boards provided for in Annex III to the Staff Regulations and to any other committee, commission or body not provided for by the Staff Regulations but which have been constituted under subsequent provisions, including those relating specifically to the Economic and Social Committee; (3) Declare null and void, in so far as is necessary, the rejection by the chairman in his letter of 24 April 1985 of the complaint made by the fourth applicant; (4) Order the defendant to pay the costs.
6. The Economic and Social Committee claims that the Court should: (1) Take note that it defers to the judgment of the Court as to the admissibility of Mr Müllers' application; (2) Dismiss his application as unfounded; (3) Dismiss the other applications as inadmissible; (4) Make an order as to Mr Müllers' costs in accordance with the relevant provisions; (5) Order the other applicants to pay the costs of their actions.
7. The interveners claim that the Court should: (1) Declare the application inadmissible or at least unfounded; (2) In any event, declare inadmissible the applicants' proposal in their reply that the Court should take evidence; (3) Order the applicants to pay all the costs, or at least those incurred by the interveners.
B — Case 431/85
8. The applicants claim that the Court should: (1) Declare null and void the rules or the text adopted by the general meeting of the staff of the Economic and Social Committee on 19 April 1985; (2) Declare that all subsequent measures taken pursuant to that text are null and void; (3) Declare, in so far as it is necessary, that the dismissal by the Economic and Social Committee of the applicants' complaint lodged on 18 July 1985 is null and void; (4) Declare that the Economic and Social Committee should take every appropriate measure to prevent the rules adopted on 19 April 1985 and all subsequent measures from having any effect whatsoever; (5) Order the defendant to pay the costs.
9. The Economic and Social Committee claims that the Court should: (1) Dismiss the application as inadmissible or as ill founded; (2) Order the applicants to pay the costs.
10. The interveners claim that the Court should: (1) Declare the application in Case 431/85 to be inadmissible; (2) In the alternative, in the unlikely event of the application's being declared admissible, declare it to be unfounded; (3) Order the applicants to pay all the costs, including the costs incurred by the interveners.
III — Submissions and arguments of the parties
A — Case 146/85
Admissibility of the application
The ESC and interveners raised three points on the admissibility of the application.
11. The first question regarding admissibility is concerned with the question whether the Court has jurisdiction to review the legality of each of the contested steps, namely: (a) the step whereby the Chairman of the ESC refused, on 24 April 1985, to draw the attention of the Chairman of the Election Board to the fact that elections to the Staff Committee for 1985 to 1987 had to take place in accordance with the electoral system adopted in 1983; (b) the decision of the ESC staff meeting on 19 April 1985 which amended the electoral system; (c) all steps subsequent to that decision.
12. The applicants maintain that the Court generally has jurisdiction in such matters, as is shown by the judgment of 29 September 1976 delivered in Case 54/75 De Dapper and Others v Parliament [1976] ECR 1381, in which the Court recognized the admissibility of an application pursuant to Article 179 of the Treaty, relating to an electoral dispute with regard to the appointment of the Staff Committee of an institution. Turning to the precise purpose of their application, the applicants maintain that they are permitted to challenge the refusal of the Chairman of the ESC to accede to the request of the fourth applicant, Mr Müllers, inasmuch as that refusal issues from the appointing authority or an authority acting in its stead. They maintain that they are further permitted to challenge the decision of the general meeting of staff on 19 April 1985 on the ground that, since the decision related to the election of the Staff Committee of a Community institution, it is subject to review by the institution in question, which, according to the De Dapper judgment, may act either of its own volition or on receipt of an official complaint; consequently, the Court may review not only the measures of the appointing authority itself but also the measures and decisions which have been, or should be, subject to review by the appointing authority. The applicants also claim that such a review must not only deal with procedural issues (Article 9 (3) of the Staff Regulations and Article 1 of Annex II thereto; Decision No 1896/75A of the Bureau of the ESC), but must extend to substantive issues, such as the electoral system and its amendments. Accordingly, the applicants cite Article 9 (3) of the Staff Regulations, which provides that the Staff Committee must ‘provide a channel for the expression of opinion by the staff’ and the text of the decision in the De Dapper judgment, which calls for elections to the staff committees to be held ‘in accordance with democratic rules’.
13. The ESC concedes that the application is admissible in so far as it is directed against the Chairman's letter of refusal of 24 April 1985. It also concedes that the application may contest the decision of the general meeting of 19 April 1985, but only in so far as it asks the Court to censure the infringement of the one-month rule under Article 5 of Decision No 18 96/75A of the Bureau of the ESC, given that the application of the fourth applicant, Mr Müllers, dealt only with that point. According to the ESC, the second paragraph of Article 1 of Annex II to the Staff Regulations authorizes the staff meeting to lay down as it sees fit the conditions governing the election of the Staff Committee, subject only to the observance of certain imperative rules such as the secrecy of the ballot and the need to represent the various categories of official and obtain a quorum of voters; a review of those matters may therefore deal only with infringements of express and specific provisions.
14. The interveners, although intervening in favour of the conclusions of the ESC — which accepts the admissibility of the action against the decision of the general meeting of staff on 19 April 1985 — claim that their conclusions differ on this point and do not accept the admissibility of the action except where it is directed against the Chairman's refusal, on 24 April 1985, to accede to the request of the fourth applicant, Mr Müllers, which they claim to be the only step on the part of the appointing authority which gave grounds for complaint.
15. The second question regarding admissibility concerns the procedural requirements surrounding a prior complaint, in the sense that it needs to be established in this case: (a) whether an official complaint prior to the action is necessary, (b) whether the complaint must refer to all the steps covered by the application, and (c) whether in the circumstances that condition was fulfilled.
16. The applicants maintain that the submission of a prior complaint is, in the circumstances, unnecessary because: (a) the Court had recognized, in a judgment of 16 March 1978 on the decisions of selection boards, that a complaint is unnecessary when the appointing authority cannot amend the contested measure (Case 7/77 Von Wtillerstorff und Urbair v Commission [1978] ECR 769); (b) the appointing authority's refusal to intervene of its own motion entailed an irrevocable breach of its obligations, or at least of those arising from the written provisions on the subject; (c) the reply of the Chairman of the ESC to any further complaints could not differ from his reply on 24 April 1985 to Mr Müllers' letter of 19 April 1985.
17. The applicants argue that, in any event, Mr Müllers' letter is a complaint for the benefit not only of himself but also of the other applicants, because he had claimed to be acting on behalf of his trade union in order to demonstrate that he was not doing so in a merely personal capacity.
18. The ESC contends that the procedural prerequisite of an official complaint is mandatory according to the De Dapper judgment (paragraph 23 of the decision) and that the only possible exception is in the case of selection board decisions (judgment of 15 January 1985 in Case 168/83 Pasquali-Gherardi v Parliament [1985] ECR 83). Consequently, it was only the fourth applicant who satisfied that condition, if his letter of 19 April 1985 were to be accepted as a complaint on his own behalf.
19. The interveners take the view that, in so far as the applicants failed to lodge a complaint, their action is inadmissible. As far as the fourth applicant's letter of 19 April 1985 is concerned, inasmuch as it called upon the President of the ESC to intervene in the manner proposed it could be described as a ‘request’ under Article 90 (1) of the Staff Regulations but not as a ‘complaint’ under Article 90 (2) thereof.
20. The applicants further maintain that the letter, even if viewed as a complaint, was submitted solely on behalf of a trade union which, being a professional organization, is not permitted to bring an action under Articles 90 and 91 of the Staff Regulations (judgment of 18 March 1975 in Case 72/74 Union syndicale v Council [1975] ECR 401).
21. The third question regarding admissibility concerns the interest of the applicants in bringing the proceedings.
22. The applicants maintain that they are entitled to assert the interest of every voter in ensuring that the electoral system applied is in conformity with the provisions in force and is not amended in an illegal manner. They take the view that in this type of case no applicant — even a candidate — may claim an interest different from that of other voters. A political and moral interest, held in common with the ordinary voters and members of the general meeting, should thus make the applicants' action admissible. There was, moreover, the interest arising from their being candidates for the Staff Committee.
23. The ESC contends that the fact of being an ordinary voter does not confer a sufficient interest, with the result that only those applicants who were candidates for election to the Staff Committee — Mr Diezler, Mr Fink-Jensen and Mr Ricci — could be permitted to bring an action.
24. The interveners maintain that it is not the fact of being a voter which confers sufficient interest in bringing an action, but only that of being a candidate for election. Consequently, Mr Müllers, who was not a candidate for election to the Staff Committee, could not be permitted to bring an action even if it were conceded that he fulfilled the other conditions of admissibility.
Substance
25. The applicants set out four submissions.
First argument
26. The applicants base their first submission on infringement of the first paragraph of Article 5 of Decision No 1896/75A, cited above. According to the applicants, the general meeting on 19 April 1985 was unlawful on the ground that it took place on the day before the date on which the term of office of the outgoing Staff Committee expired (20 April 1985), rather than one month beforehand. They take the view that the postponement of the elections so as to ensure that one month elapsed between the establishment of the electoral system and the holding of elections to the Staff Committee was not sufficient. The relevant date as far as the lawfulness of the general meeting on 19 April 1985 was concerned could only be 20 April 1985, the expiry date of the outgoing committee's two-year term of office, which could not be extended by the expedient of postponing the date of the election so as to ensure an interval of a month and by keeping the outgoing committee in office to deal with business in hand until the incoming committee took office. This continuation of its functions was based on Article 5 of Decision No 1896/75A, whereas the term of office was entirely based on Article 1 of Annex II to the Staff Regulations. Those two statutory authorities should not be interchangeable, otherwise it would be permissible to postpone elections several times over, and to extend the functions of an outgoing Staff Committee by virtue of successive amendments to the electoral system.
27. The ESC takes the view that postponement of the elections ensured compliance with both the letter and the spirit of the requirements under Article 5, the purpose of which was to enable officials to be informed about the electoral system and to understand it properly.
28. The interveners refer to the arguments of the ESC. They add that the meeting held on 19 April 1985 was not a new meeting but the continuation of the meeting already held on 25 March 1985, and that in any event an infringement of Article 5 carries no penalty.
Second submission
29. The applicants maintain that the meeting on 19 April 1985 was unlawful for lack of a quorum; only 120 out of 420 members voted. They infer the duty to constitute a quorum, first, from the obligation laid down by the Court in the De Dapper judgment to observe ‘democratic rules’ and, secondly, from the reference in the same judgment to the European Parliament's internal arrangements, under which a quorum is required. Finally, the principle arises by analogy with the fifth paragraph of Article 1 of Annex II to the Staff Regulations, which requires a quorum of a staff meeting which elects the Staff Committee.
30. The ESC contends that no requirement regarding the constitution of a quorum arises from any obligation which applies in the present circumstances. The absence of such a requirement may even be inferred by reasoning a contrario, inasmuch as the obligation is expressly laid down only in the case of a meeting which elects the Staff Committee. Furthermore, the obligation may not be inferred from a general principle of public law, since the institution in question cannot be scrutinized except within the limits set out in the Staff Regulations, to which the De Dapper judgment refers exclusively (paragraphs 16 to 18 of the decision).
31. The interveners point out that the general meeting of staff which adopted the previous electoral system consisted of no more than one-fifth of the officials, without there having been any protests as a result.
Third submission
32. The third submission is based on the fact that the voting of the general meeting on 19 April 1985 took place without the voters' having been duly informed in writing of the content of the text put to the vote. In their application, the applicants refer to the following points: (a) The draft of the new electoral rules was not disseminated by the Staff Committee but by a trade union; (b) The text was not distributed in all languages, nor even in the commonest languages, such as English, German and Italian; (c) The meeting voted on amended texts which had not been disseminated by the Staff Committee prior to the session but in the course of it, in a few copies only and in French alone. In their reply the applicants restate their submission, maintaining that the meeting on 19 April 1985 was held ‘in unlawful circumstances liable to create confusion in the minds of the voters’, on the following grounds: (a) Only some of the participants were in possession of the French text, of which fewer copies were distributed than there were participants present; (b) The text was neither reproduced nor distributed by the Staff Committee; (c) The translations into English, Italian and German were not translations of the final text but of a draft distributed by a trade union, the Union syndicale (European Public Service Union); (d) The translations were not available in the other languages. They offer to furnish evidence from witnesses and claim that the Court should order the ESC to produce the minutes of the meeting on 19 April 1985 and those of the 48th and 49th meetings of the Staff Committee.
33. The ESC observes that, in their reply, the applicants amend their submission; this is contrary to Article 42 (2) of the Rules of Procedure, and the submission is therefore inadmissible. Turning to the facts, the ESC claims that according to its information the staff was duly informed of the questions laid before the general meeting.
Fourth submission
34. In their fourth submission, the applicants maintain that the new electoral arrangements, by their excessive emphasis on an absolute majority, serve to favour unduly the leading groups who, once assured of an absolute majority (50 to 66%), secure all the seats on the Staff Committee, thereby eliminating the others. They take the view that an effect such as that is contrary to the first paragraph of Article 9 (3) of the Staff Regulations, which seeks to ensure that the staff is represented within the Staff Committee.
35. The ESC considers the fourth submission to be inadmissible because it relates to the merits of the electoral system, which are a matter left to the absolute discretion of a staff meeting. As to the substance of the argument, the ESC observes that the electoral system itself, whether based on an absolute majority, on proportional representation or on a hybrid scheme, is not prescribed by the Staff Regulations, so that the system adopted is lawful.
Replies of the parties to questions put by the Court
36. In reply to the question whether the applicants are members of the trade union on whose behalf the fourth applicant, Mr Müllers, sent the letter of 22 April 1985 to the Chairman of the ESC, the applicants answer in the affirmative whilst the ESC states that it has no reliable information on the point.
37. In reply to the question as to which of the applicants were candidates for the Staff Committee, the applicants confirm that Mr Diezler, Mr Fink-Jensen and Mr Ricci were indeed candidates and that the two other applicants, Mr Mullers and Mr Deasy, were eligible to stand as such; the ESC confirms that the first three applicants mentioned above were candidates.
38. In reply to the question as to the date originally fixed for the elections to the Staff Committee for the period from 1985 to 1987, the applicants state that, as far as they know, the original date was 10 June 1985 and that the Election Board postponed the date to 14 June 1985, whilst the ESC states that since the appointment of the Election Board, originally scheduled for 21 March 1985, could not take place until 19 April the board subsequently fixed 14 June 1985 as the date for the elections.
39. In reply to the question as to the total membership of the staff of the ESC and the number of members who were present (a) at the start of the meeting of 19 April 1985, and (b) at the time of voting, the applicants, in essence, say they have no precise information but estimate the staff present at between 400 and 450; the ESC states that the list of voters drawn up on 22 May 1985 contained 403 names. It adds that there was no check-list of the members present at the start of the meetings, but that at the time of voting there were apparently 127 staff members present, judging by the fact that 76 voted in favour of the amended electoral system with 42 against and 9 abstentions.
B — Case 431/85
Admissibility of the application
40. The ESC contends that the application in Case 431/85 is inadmissible on the grounds of lis pendens, since the second action is brought by the same applicants and has the same purpose, the same conclusions and the same argument — that the election rules in dispute should be declared void — as the action in Case 146/85. According to the ESC the fact that the applicants submitted a complaint under Article 90 of the Staff Regulations prior to lodging the application is insufficient to differentiate this action from Case 146/85. The ESC considers that this procedure on the part of the applicants is designed to neutralize its arguments in Case 146/85 that their application is inadmissible. In that connection it maintains that the application should be examined in the form in which it was lodged, both as regards the prior complaint which was missing in Case 146/85 (with the exception of that of Mr Mullers) and as regards the capacity in which the applicants acted, which should be appraised without reference to any amendment or further explanation contained in a fresh complaint or subsequent action.
41. The applicants maintain that the objection by the ESC that their prior complaint is inadmissible should be rejected. They submit that out of prudence or necessity, in view of the counter-arguments from the defendant and interveners in Case 146/85, they had an undeniable interest in supplementing some aspects of the first action in Case 146/85 by submitting a second complaint, in order, first, to put beyond dispute the fact that the applicant Mr Müllers was acting on his own behalf, secondly, to satisfy the condition of admissibility regarding the prior complaint as far as the other applicants were concerned and, lastly, to establish that the first, third and fifth applicants were acting qua candidates for the elections to the Staff Committee. They maintain that the objections already raised to the admissibility of their complaint are unfounded, because the defendant's viewpoint that one complaint may not be superimposed on another is not supported either by the relevant provisions or by the case-law of the Court, with the result that it cannot be asserted against an applicant who has shown prudence in submitting a further complaint through official channels by way of supplementing an earlier one. They take the view that, provided that a complaint satisfies the conditions of admissibility under Article 90 (2) of the Staff Regulations, that is to say, the conditions under the Staff Regulations as to the capacity of the complainant and the time-limits, there is nothing to prevent the complainant from lodging a fresh complaint in so far as it is not entirely identical to his previous one. In that connection they observe that the reasons given for the rejection of the second complaint are based on the identical nature of the purpose of the two complaints and on the content of the complaints themselves; however, no mention is made of the other two elements which are important in that context, namely the question whether (a) the parties, and the capacity in which they act, are identical and whether (b) the basis of the two applications — that is, the submissions made — are also identical. As regards the last point they stress that in their complaint and in the application in Case 431/85 they enlarged on the third submission for considering the disputed rules illegal as they had already done in their statement of reply in Case 146/85, and also point out that they submitted two new submissions (numbered 3 bis and 5 in the application to the Court), following a thorough investigation of the matter which had not been feasible in bringing the action in Case 146/85; there, the application had been hurriedly drafted to serve as a basis for their application to the Court for the adoption of interim measures. The applicants take the view that those counter-arguments to the ESC's objection that their complaint is inadmissible are equally valid with regard to its objection to their application to the Court, the admissibility of which should be conditional only on compliance with the time-limits laid down by Article 91 of the Staff Regulations. The applicants therefore maintain that their application is admissible because, in the circumstances, the conditions for lis pendens are not satisfied. It is not true that the parties and the capacity in which one of those parties acts are the same in both cases, because the capacity of Mr Müllers as complainant and applicant, which was contested by the interveners in Case 146/85, is not so contested in Case 431/85, and because the defendant, having contested the admissibility of the other applicants in Case 146/85, is precluded from doing so again in the second case, Case 431/85. Moreover, the basis for alleging nullity, that is, the submissions raised, are not the same in both cases because new submissions are put forward in Case 431/85. Lastly, the applicants point out that if the ESC's contention were accepted, namely that their submissions in Case 431/85 numbered 3 bis and 5 are inadmissible on the ground that they are new, the implication would be that it is not only claims which may be inadmissible but also submissions, and this would be an innovation in matters of litigation.
42. The interveners maintain that the application in Case 431/85 is inadmissible on the ground of lis pendens, which could only have been avoided if, prior to commencing the action, the applicants had discontinued the proceedings in Case 146/85. That being so, the applicants claim that declaring the action admissible would be tantamount to admitting new claims and submissions during the course of the proceedings, contrary to Articles 38 and 42 of the Rules of Procedure.
Substance
First submission
43. The first submission is the same as that raised in Case 146/85, and so — in their essentials — are the parties' exposition and reasoning.
Second submission
44. The second submission is the same as that raised in Case 146/85 and so — in their essentials — are the parties' exposition and reasoning. None the less, the interveners observe that it is not based on any legal text. They also point out that the conditions governing the election of the Staff Committee are laid down by a staff meeting at its absolute discretion, and consequently the ESC is not empowered to criticize the decisions of the meeting on that point.
Third submission
45. The applicants' third submission is the same as their third submission in Case 146/85 as reformulated in their reply in that case. The ESC, referring generally to the amendments to the original formulation of the submission in the application in Case 146/85, and also to any other new submission contained in the application in Case 431/85, contends that in so far as the applicants wish to base their further application on amended or enlarged submissions they are in conflict with the relevant procedural provisions and in particular with Article 38 (1) (c) and Article 42 (2) of the Rules of Procedure, the latter of which provides that no fresh issue may be raised in the course of proceedings. With reference to this third submission, the ESC observes that it is worded differently in the new application, in that it alleges that the voting at the general meeting on 19 April 1985 took place in irregular and confused circumstances, whereas in their first application the applicants had solely taken issue with the fact that the voters were not adequately informed in writing of the content of the new text adopted.
46. Lastly, the ESC contends that the submission is unsubstantiated because the applicants' assertions are not established. It takes the view that, as the institution in question, it was in any event not competent to intervene.
Third submission, as amended
47. The applicants derive this submission from the fact that the voters at the meeting on 19 April 1985 were misled by the statements made by the author of the text put to the vote, when he spoke of the possibility and the implications of abstaining from voting for the representatives of certain categories of officials. They explain that whereas the printed ballot paper used at the staff meeting made no mention of abstention and whereas, pursuant to the new rules, any mark designed to express an abstention would have invalidated the vote, the author of the rules (and Chairman of the Election Board) assured staff that an abstention could be counted as a vote. That statement, they claim, had induced many people to vote in favour of the proposals setting up a new electoral system and thereby brought about its adoption by 59 votes to 44, with 11 abstentions.
48. The ESC contends that the submission duplicates the third submission originally put forward and must be rejected, since the applicants' assertion was disputed and the facts alleged did not in any case allow it, as the institution concerned, to intervene.
49. The interveners observe that in the course of the meeting in question, neither the applicants nor the other participants expressed any remark or objection as to the implications of the decision put to the vote, and neither did the complainant and applicant Mr Müllers in his complaint of 22 April 1985.
Fourth submission
50. The fourth submission is the same as that raised in Case 146/85, and so — in their essentials — are the exposition and reasoning of the parties.
Fifth submission
51. The applicants observe that the electoral system adopted on 19 April 1985 obliges electors, who hold seven votes, to cast one vote for each category of official or ‘other servant’, with the result that they hold six ‘blocked’ votes and a single ‘free’ vote, since a refusal to vote for one of the candidates in each category renders the entire vote invalid. The system thus conflicts with the fundamental requirement of the Staff Regulations, namely the expression of opinion by the staff in accordance with the first paragraph of Article 9 (3), which can only be satisfied by a system approximating as closely as possible to proportional representation. According to the applicants the new system, besides involving difficulties of interpretation, is absurd because in reality the representative, or representatives, of a category of official or other servant is elected, not by the votes of officials belonging to that category (which may represent a minority), but perforce by the whole corpus of voters — that is, on the votes cast by officials belonging to other categories. The applicants, whilst specifying that they do not contest the principle of representation by category, ask whether the fourth paragraph of Article 1 of Annex II to the Staff Regulations must be interpreted as calling for all categories of official and other servant to be represented by categories or whether several categories might not be represented by a single delegate, and they conclude that, by allowing each elector a limited number of votes, the new system frustrates the normal workings of the electoral system as far as a fair representation of the various categories is concerned.
52. The ESC refers to the question asked by the applicants, as to whether the fourth paragraph of Article 1 of Annex II to the Staff Regulations means that all categories of official and other servants must necessarily be represented within the Staff Committee, and observes that this point was confirmed by the judgment of the Court of 10 July 1986 in Case 270/84 Licata v ESC [1986] ECR 2305, which dismissed the application of an official who had to leave the Staff Committee to which she had been elected as a member of the local staff.
Sixth submission
53. In their reply, the applicants put forward a new submission based on further irregularities which allegedly vitiated the voting at the meeting on 19 April 1985. Those irregularities were that: (a) there was no list of electors, (b) the vote was taken on a show of hands, and (c) those present were able to take part in the voting without there being any checks on whether their status under the Staff Regulations entitled them to do so. They maintain that they decided to put forward that submission as a result of the questions which the Court requested them to answer, and claim that it was admissible pursuant to Article 42 of the Rules of Procedure. They add that in any case the submission, which is contained in the foregoing elements of fact and law, is implicit in the third submission (as amended), discussed above.
54. The ESC refuses to accept the admissibility of the new submission, and denies that it was implicitly contained in elements of fact and law already considered.
C. Kakouris
Judge-Rapporteur
1 Language of the Case: French.