Report for the Hearing delivered in Joined Cases 193 and 194/87

I — Facts and procedure

1) In a leaflet dated 26 February 1987 concerning the intentions of the Court of Auditors regarding the forward estimate for 1988, the Executive Committee of the European Public Service Union, Luxembourg (‘the Union’), criticized the planned increase in the number of temporary staff. According to the leaflet, such an increase was likely not only to harm the status of the European Civil Service but also to jeopardize the independence of the Court of Auditors and compromise its role as the ‘financial conscience of Europe’. On 17 March 1987, the President of the Court of Auditors sent to Mr Maurissen, the only official of the institution who was a member of the Executive Committee of the Union named at the foot of the leaflet, a letter in which he criticized the form and content of the leaflet and announced that he had decided temporarily to forbid the internal messenger service to distribute trade-union circulars, which henceforth would have to be distributed either through the Staff Committee or exclusively by the trade-union organizations themselves.

2) On 11 March 1987, the Secretary-General of the European Public Service Union, Luxembourg, had informed the President of the Court of Auditors that a union delegation had been set up at the Court of Auditors and asked him to agree to release from their duties the members of the delegation designated to take pan in meetings with the Commission of the European Communities on staff matters. On 31 March 1987, whilst taking note of the establishment of a union delegation, the President of the Court of Auditors replied to the Secretary-General of the Union that he could not accede to the request for release from duties; the explanation for that refusal was worded as follows: In the mean time, Mr Maurissen, who had applied for special leave to attend a consultation meeting at the Commission in Brussels, was informed, by letter dated 25 March 1987 from the Head of the Administration and Personnel Division of the Court of Auditors, that no such leave would be granted, for exactly the same reasons.

‘Although Article 24a of the Staff Regulations of Officials of the European Communities recognizes the right of association of all officials, only tasks undertaken by members of the Staff Committee and by officials nominated by that committee to be members of a body provided for in the Staff Regulations or set up by the institutions are regarded, under the said regulations, as part of the duties which they are required to carry out within their institution.’

3) Finally, on 1 February 1987 Mr Maurissen applied to benefit from the provisions of the rules concerning further training which were adopted by the Court of Auditors on 25 June 1980 pursuant to Article 24 of the Staff Regulations and Annex V thereto. That application, which was later clarified by Mr Maurissen at the request of the President of the Court of Auditors, was for special leave to follow courses in law at the centre universitaire in Luxembourg and to sit the end-of-year examinations. By letter dated 2 June 1987 the President of the Court of Auditors informed Mr Maurissen that he had decided to refuse him special leave to attend lectures and instead to grant him leave corresponding to half the period necessary to sit the examination.

4) On 18 June 1987, Mr Maurissen lodged with the appointing authority a complaint under Article 90 of the Staff Regulations against the decisions of 17 March, 31 March and 2 June 1987. That complaint was expressly rejected on 9 September 1987.

5) Without waiting for his complaint to be dealt with, on 22 June 1987 Mr Maurissen brought the present action for the annulment of those decisions pursuant to Article 91(4) of the Staff Regulations; the application was registered under number 193/87. By a separate document lodged with that application Mr Maurissen applied for suspension of the operation of the first two decisions. The latter application was rejected by order of the President of the Third Chamber of the Court dated 10 July 1987.

6) The European Public Service Union, Luxembourg, for its part, brought an action against the decisions of 17 and 31 March 1987, which was registered at the Court on 22 June 1987 under number 194/87.

7) By order of 10 February 1988 the Third Chamber of the Court granted the Internationale des services publics (‘ISP’) leave to intervene in support of the European Public Service Union's conclusions. However, the ISP did not submit any written observations within the prescribed period.

8) On 28 June 1988 the Third Chamber of the Court decided, pursuant to Article 95(4) of the Rules of Procedure, to refer the two cases to the Full Court; before doing so it put a question to the European Public Service Union.

9) By order of 18 January 1989, the Court joined the two cases for the purposes of the oral procedure and the judgment.

10) Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, pursuant to Article 92(2) of the Rules of Procedure, to open the oral procedure in order to consider of its own motion whether the application was admissible. It also put questions to the European Public Service Union and the Court of Auditors and requested the European Parliament, the Council and the Commission to supply information which it considered necessary in the case. The replies all arrived within the prescribed period.

II — Conclusions of the parties

1. Mr Maurissen and The European Public Service Union claim that the Coun should: (i) annul the decisions of the President of the Court of Auditors dated 17 and 31 March 1987; (ii) order the Court of Auditors to pay the costs pursuant to Article 69(2) or Article 69(3) of the Rules of Procedure.

2. In his application Mr Maurissen also claimed that the Court should annul the decision of the President of the Court of Auditors of 2 June 1987. However, in his reply he stated that he was withdrawing his action in so far as it related to that decision and asked the Court to acknowledge the withdrawal.

3. The Court of Auditors contends that the Court should: (i) take formal note of the partial withdrawal of Mr Maurissen's application; (ii) dismiss the remainder of the conclusions in Mr Maurissen's application as inadmissible or unfounded; (iii) dismiss the European Public Service Union's application as inadmissible or unfounded; (iv) order the applicants to pay all of the costs.

III — Submissions and arguments of the parties concerning the admissibility of the actions

1. The Court of Auditors submits that Mr Maurissen's conclusions are inadmissible since the decisions challenged are not capable of adversely affecting him. As regards the decision of 17 March 1987, the defendant stresses that the Court has held (judgments of 1 July 1964 in Case 26/63 Pistoj [1964] ECR 675 and of 14 July 1976 in Case 129/75 Hirscbberg [1976] ECR 1259) that only acts of the appointing authority liable to affect the legal position or position under the Staff Regulations of officials and other staff of the Communities may be the subject-matter of an action. However, that is not the case with the abovementioned decision. The applicant has no interest in requiring that the defendant's messenger service undertake the distribution of union bulletins. The members of the unions may distribute the bulletins themselves. The contested decision does not make it impossible for the applicant and staff of the Court of Auditors to obtain information about actions undertaken by those trade unions. As for the ‘decision’ of 31 March 1987, the defendant states that it is a mere note confirming that the Court of Auditors is not obliged to grant special leave to its staff without an appropriate legal or budgetary basis. Furthermore, that note was addressed to the General Secretary of the Union and not to the applicant. Consequently, that alleged decision does not adversely affect Mr Maurissen who has no interest in challenging it. The defendant points out that Mr Maurissen was refused special leave to attend union meetings by a note which was sent to him on 25 March 1987 in respect of which he has not brought any action. Finally, the Court of Auditors stresses that the order given on 10 July 1987 relating to the applicant's application for the suspension of the operation of the decisions did not rule explicitly or even implicitly on the admissibility of this application. In any event, Article 86 of the Rules of Procedure provides that an order is ‘without prejudice to the decision of the Court on the substance of the case’.

2. Mr Maurissen claims that the Court should reject those pleas of inadmissibility. First, he submits that in the abovementioned order of 10 July 1987 the President of the Third Chamber of the Court recognized by implication that the main application was not manifestly inadmissible. He based the dismissal of the application for the suspension of the operation of the decisions on the fact that there was no serious and virtually irreparable damage, whereas he must have been aware of the arguments already put forward by the Court of Auditors concerning the inadmissibility of the application. Citing the Court's case-law (judgment of 21 October 1986 in Joined Cases 269 and 292/84 Fabbro v Commission [1986] ECR 2983) Mr Maurissen notes that the decision of 17 March 1987 ‘directly affects a specific legal situation’ and that, since it is contrary to Article 24a of the Staff Regulations, it must be regarded as adversely affecting him.

3. The Court of Auditors also submits that the Union's application is inadmissible for a number of reasons: (i) the application does not comply with the formal requirements set out in Article 38(5)(a) and (b) of the Rules of Procedure since the Union's statutes were not produced in their entirety in a form guaranteeing their authenticity and proof had not been furnished that authority had been properly conferred on the lawyer; (ii) the application is out of time. The Union became aware of the decision of 17 March at the latest on 26 March which is the date to which it refers in a letter sent to the President of the Court of Auditors. As for the letter of 31 March, it was received by the applicant the day after it was sent. However, the application was lodged on 22 June, that is to say after the expiry of the two-month period provided for by the third paragraph of Article 173 of the Treaty; (iii) the application can only be admissible if the decisions challenged are of direct and individual concern to the applicant. In this respect, the Court of Auditors defers to the wisdom of the Court as regards the first decision but submits that the condition is not satisfied in the case of the decision of 31 March; (iv) the contested decisions do not adversely affect the Union. The decision of 17 March does not because the applicant cannot claim a legitimate right to have its leaflets and bulletins distributed by the internal messengers of the Court of Auditors. The decision of 31 March does not so affect the Union since it is a decision which merely confirms the position of the appointing authority refusing to grant special leave to its staff without an appropriate legal or budgetary basis.

4. In reply, the European Public Service Union puts forward a number of arguments: (i) as regards the formal requirements, the applicant produces its statutes and the Executive Committee's authority to bring legal proceedings; (ii) as regards the question whether the application is out of time, the Union stated in its application that it was made within the prescribed period; (iii) as regards its interest in bringing proceedings, the Union stresses that the decision of 17 March 1987 was notified in a letter sent to Mr Maurissen only because Mr Maurissen was the only member of the Executive Committee of the Union to work at the Court of Auditors. In reality, that decision was of direct and individual concern to the applicant. It also adversely affected the applicant by removing, or at least limiting, its freedom to inform its members and the other officials and staff of the Court of Auditors of its activities. As for the decision of 31 March 1987, it also adversely affects the applicant since it prohibits the trade unions from freely choosing their delegates for coordination meetings and from sending their delegates on mission to defend their members' professional interests.

IV — Replies to questions asked by the Court

1. The Court (Third Chamber) asked the European Public Service Union the following question: The Union made the following reply: In the applicant's view, the critical day is the day when it had cognizance of the disputed decision. Because of its rules and regulations a decision may only validly be brought to its attention in so far as it is known either by the General Assembly or by a quorate meeting of the Executive Committee. It is common ground that the Union could not take cognizance of the decision of 17 March 1987 before 24 March. After that date, the Executive Committee met on 30 March, 13 and 28 April. The minutes of those meetings indicate that it was not informed of the decision and, in any event, it could not lawfully have been so informed at the last two meetings since they were not quorate. It only validly took cognizance of it on 4 May 1987. The application, which was registered on 29 June 1987, was therefore lodged within the prescribed period. As regards the decision of 31 March 1987, the Union states that for the same reasons it may not be pleaded that its application was out of time. Finally, the applicant stresses that when, on numerous occasions, it has been granted leave to intervene in cases before the Court it has always been requested to produce the minutes of the meeting of the Executive Committee resolving to bring proceedings. It infers from that that the Court implicitly recognized that the Executive Committee alone was entitled to bring proceedings. Consequently, the abovementioned date of the meeting, namely 4 May 1987, is the only date at which time can start to run, even if certain members of the association and/or of its Executive Committee may perhaps have had prior knowledge of the disputed decision.

‘In its rejoinder, the Court of Auditors submits that the Union's application is out of time having regard to the time-limit fixed by the third paragraph of Article 173 of the Treaty. The Union is kindly requested to forward its observations regarding this plea of inadmissibility to the Court of Justice by 1 September 1988.’

2. The Court put the following question to the European Public Service Union: The Union submitted the following reply, as adopted by its Executive Committee at its meeting of 19 December 1988:

‘As “proof that the authority granted to the applicant's lawyer has been properly conferred on him by someone authorized for the purpose” as required by Article 38(5) of the Rules of Procedure of the Court the Union produced an authority given on 18 June 1987 to Maître Louis by Mr Adam Buick, the General Secretary, “pursuant to the decision adopted by its Executive Committee on 23 March 1987”.

The Union is requested to supply by 22 December 1988 all the documents (decision of the Executive Committee, minutes of meetings, etc.) proving that Mr Buick could validly give authority to challenge each of the disputed decisions.’

‘The General Secretary in fact had general authority to bring any proceedings before the Court of Justice in the name of the union.

The power of attorney given on 18 June 1987 was, so far as necessary, ratified at the meeting of the Executive Committee on Thursday, 25 June 1987.

The Executive Committee confirms that Mr A. Buick was therefore empowered to give a power of attorney to Maître Louis to institute proceedings against each of the contested decisions.’

3. The Court put the following question to the Court of Auditors: The Court of Auditors made the following reply. The letter of 31 March 1987 did not have to be published or sent to the addressee by registered mail. It was and could not be other than a simple letter. In the light of the rules of evidence before the Court of Justice, the Court of Auditors considers that it can prove its statement that the letter was received by its addressee the day after it was sent thanks to a series of ‘presumptions’ and indications and by a claim that measures of enquiry should be ordered. The first ‘presumption’ relates to the fact that the period needed for the Luxembourg post to deliver a letter from the main office of the Union to the main office of the Court of Auditors must be the same as the period necessary to deliver a letter in the opposite direction, the two addresses being, moreover, some 150 metres apart. The letter from the Union to which the Court of Auditors' letter of 31 March was replying was dispatched on 11 March and arrived at the Court of Auditors on 12 March. It is therefore reasonable to presume that the letter of 31 March also reached its addressee the day after it was sent. Such a presumption is recognized by the statute law or the case-law in the legal systems of several of the Member States, in particular Belgium and the Federal Republic of Germany. An additional inference may be drawn from the fact that the Union recognizes, at least implicitly, that the letter of 31 March reached it the following day, or at least before 22 April, the critical date with regard to the two-month limitation period under Article 173 of the Treaty. The Union, which manifested indignation in its application that the reply of the Court of Auditors of 31 March was dated 20 days after its request, which was formulated on 11 March, would doubtless have manifested its indignation if the reply of 31 March had arrived a further 22 days later, in other words after 22 April. Moreover, in its reply, the applicant expresses no surprise at the time allegedly needed to deliver the letter. Finally, in its reply to the question asked by the Third Chamber of the Court, the Union does not argue that the letter of 31 March did not arrive within the normal delivery period but simply asserts that its Executive Committee, which alone could validly take cognizance of the letter, had not been able to meet. In the light of these weighty and concordant presumptions the Court of Auditors considers itself entitled to state that the applicant had cognizance of the letter of 31 March 1987 the day after that letter was sent. Alternatively, the defendant requests, pursuant to Article 45(2) and Article 47 of the Rules of Procedure, that the addressee of the letter, Adam Buick, be summoned either to make a personal appearance or as a witness.

‘In its rejoinder, the Court of Auditors states in support of its plea that the Union's application was out of time and therefore inadmissible, that “as regards the letter of 31 March 1987, it suffices to state that it is directly addressed to the applicant who therefore had cognizance of it the following day”.

The Court of Auditors is requested to supply by 22 December 1988 any proof relating to its statement regarding the date of receipt of that letter.’

F. Grévisse

Judge-Rapporteur

1 Language of the Case. French