OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 6 MARCH 1975 (1)

Mr President,

Members of the Court,

I have today to give my opinion in a case which eight European trade unions have brought against the Council of the European Communities. These trade unions have their Head Offices in Brussels, Luxembourg, Karlsruhe, Ispra and Petten, and their task is to represent the interests of the European public service and in particular the interests of officials and other servants of the European Communities. In the present case the question is whether the Council has correctly adjusted the salaries of European officials and other servants in the previous years in accordance with Article 65 of the Staff Regulations.

As is known from another case (Case 81/72, Commission of the European Communities v Council of the European Communities [1973] ECR 575), this adjustment — as was laid down in the decision of the Council of 20 and 21 March 1972 — has to take place during a trial period of three years having regard to criteria which reflect the alteration in the purchasing power of salaries in the public service in the Member States. For this purpose the first criterion is the specific index which is laid down for a reference period, namely each period from 1 July to 30 June of the following year. This index is the alteration in the average basic salary of a selected group of employees taking into account the increase in the cost of living. The other criterion is an index based on the alteration in the total emoluments per head in the public service in the Member States. Salaries are to be fixed within the margin of discretion allowed by these two indices.

The fact that this has not been done correctly in previous years is alleged not only by the eight applicant unions; it is also accepted by the Commission, which has brought independent proceedings against the Council (Case 70/74, Commission v Council of the European Communities).

The Commission came to this view when it submitted the amounts for the period July 1972/June 1973 which were intended to show the increase in purchasing power of the salaries in the public service in each Member State. It observed that a particularly high rate had been announced for Italy, which was explained by the fact that a series of compensations had been incorporated in the basic salaries and the fixing of a general adjustment allowance which has to be taken into account under the terms of the specific index. Before December 1972 and January 1973 on the other hand the relevant compensations and allowances were not taken into account in fixing the specific index under the terms of the salary system obtaining at the time. The Commission inferred from this that several of the decisions taken by the Council in the past under Article 65 of the Staff Regulations had no correct basis. It was convinced that the specific index announced for Italy only partially reflected the increase in purchasing power during the period 1971/72 and that the amounts announced for 1973 reflected not only the increases for the period 1972/73 but also partly the increases for earlier years. As already intimated in a letter dated 10 December 1973 to the Council, the Commission was therefore endeavouring subsequently to work out proposals to deal with the said deficiencies. In a report to the Council dated 14 February 1974 it came to the view that it would be appropriate to provide as compensation a salary adjustment of 5.4 % with effect from 1 July 1972. The proposed regulation which it sent to the Council on 21 March 1972 was accordingly so drafted.

The Council however did not follow it. Rather did it resolve at a meeting on 22 and 23 July 1974 to keep to the decisions on salary adjustment taken in the past — most recently in December 1973 — and not to provide any corrections or supplements by way of compensation for salaried workers.

This caused the unions — and also the Commission — to bring the matter before the Court.

According to the statement of claims the unions are asking the Court to:

—annul the decision of the Council of 22 and 23 July 1974;

—rule that compensation must be paid to the European officials for the loss they suffered as the result of errors vitiating the decision of the defendant prior to Regulation No 2/74 of 28 December 1973 concerning the adjustment of salaries on the basis of a change in purchasing power;

—rule that compensation must be such as to keep changes in the purchasing power of the salaries of the European officials in step with changes in the purchasing power of the salaries of public officials in the Member States;

—rule that the effective date of the increase granted as compensation must reflect the fact that the consequences of the defectiveness of the specific index extend beyond the last period of reference.

I do not need today to make a full investigation of these claims. The Council takes the view that it is not open to the applicant unions to bring the questions in dispute before the Court. It has therefore applied to have the admissibility of the application tried as a preliminary issue under Article 91 of the Rules of Procedure and to have the application declared inadmissible. A hearing took place on 18 February 1975 on the admissibility of the application. I have therefore now simply to examine whether the application is admissible.

The case-law of the Court (cf. Case 175/73, Union Syndicate v Council [1974] ECR 917 and Case 18/74, Syndicat général v Commission [1974] ECR 933) has already recognized that trade unions may be parties. This is so at least if they have the necessary autonomy to act in legal matters as a responsible person and if they are representative. As regards two of the applicants everything necessary has been said on this already in the said judgments. It is thus clear that they are capable of being parties. As regards the other applicants I will for the moment assume the same, so as to concentrate on the examination of the main problems of the case.

It is already made clear in the case-law that trade unions cannot bring applications under Article 91 of the Staff Regulations. Its conditions need not therefore detain us, and this all the more so since the applicants have expressly stated that the application is based exclusively on Article 173 of the EEC Treaty. If the enquiry is accordingly limited to the provisions of Article 173, then it may likewise be said at the start that this course is in principle open to unions, as the judgments cited show. It is however just as certain, and the judgments leave no doubt as to this, that the general conditions in this provision, arising from the Treaty and the case-law thereon, must be respected.

The Council objects that the conditions of the second paragraph of Article 173 have not been fulfilled in the present case. First of all it refers to the fact that the act in dispute must be recognized as having the nature of a regulation since it deals with the tacit rejection of a regulation. Further it is of the opinion that trade unions are affected neither individually nor directly by the measure objected to. Finally the Council takes the view that trade unions as associations can bring actions only to defend their own interests and not the collective interests of their members.

First, as regards the question whether the admissibility of the applications fails by reason of the legal nature of the act challenged, it may clearly be seen from the case-law (Cases 16 and 17/72, Confédération nationale des producteurs de fruits et légumes and Others v Council [1962] ECR 471) that there is no right of action by individuals (I mean by this those entitled under the second paragraph of Article 173) when it is a question of regulations. Regulations for this purpose include acts of a legislative nature, that is measures which affect not only a limited number of specific addressees but a class of persons defined in general terms. It is also laid down in the case-law (Case 42/71, Nordgetreide GmbH and Co. KG v Commission, Rec. 1972, p. 105 at p. 111) that in the event of rejection of an application the legal nature of the act of rejection is to be judged according to the subject of the application.

The question therefore depends on whether what the Council rejected at its meeting on 22 and 23 July 1974 must in fact be regarded as a regulation.

In the minutes we have before us of the said meeting of the Council, their subject — in so far as concerns us now — is described as ‘proposition de révision des rémunérations suite à la correction de l'indicateur sécifique pour un des États membres’. There is further mention of a proposal from the President of the Council and a corresponding proposal from the Commission. What is material is the decision at the end of the minutes to leave the adjustment of salaries as they were on the occasion of the last adjustment on 18 December 1973, that is not to provide additional supplements or changes. This entitles one at least to speak of a tacit rejection of the two said proposals. On this basis alone, then, in my view the argument cannot be rejected out of hand that the decision of the Council has a legislative nature.

In its proposal of 21 March 1974 for the issue of a regulation the Commission basically put forward two matters. In its view, for the period from 1 July 1972 to 30 June 1973, the salary scales of the Staff Regulations and Conditions of Employment of Other Servants in the version of 9 August 1973 and, for the period after 30 June 1973, the salary scales of the Staff Regulations and Conditions of Employment of Other Servants in the version of 28 December 1973, should be replaced by others. If this had been accepted, then it could certainly be said that the measure as a whole had effects on an indefinite number of persons because in any event effects extending beyond July 1974 would have resulted. As a whole then, it must be regarded as being in the nature of a regulation, and so must therefore the act of rejection by the Council.

The same applies if the proposal of the President of the Council is taken as a basis. It aimed at providing a supplementary salary adjustment of 2 % in addition to the increase of 3-3 % resolved on 18 December 1973. It was to take effect on 1 July 1973 and payments were to be made as from 1 January 1975. This too, if accepted, would have had effects beyond July 1974 and therefore in any case would have affected an indefinite number of persons. This also would have been a genuine regulation, the rejection of which, as already stated, cannot be attacked by private individuals, which naturally includes trade unions.

The Council has rejected any adjustment of salaries, including conceivable settlements of an exclusively retrospective nature in respect of which, had they been accepted, the class of those affected would perhaps have been ascertainable. This is what the staff representatives had in mind in fact amounted to. As appears from records of a dialogue conducted with the Council of Ministers on 7 December 1973 the staff representatives were thinking only of an adjustment measure in the form of an increase in salaries of 5.5 % as from 1 July 1972. For the sake of completeness we must therefore ask ourselves whether, even taking this possibility as a basis, the negative decision of the Council of July 1974 can be described as unassailable by private individuals by reason of its legal nature.

If I may say this immediately, even on this view I see nothing to stop the right of action of trade unions from being excluded.

First, it is certainly not admissible to speak, as the applicants have done, of a bundle of individual decisions which have in reality been issued and to refer to the relevant case-law of Joined Cases 41-44/70 International Fruit Co. and Others v Commission, Rec. 1971, p. 411 at p. 422 and Case 62/70, Bock v Commission, Rec. 1971, p. 897 at p. 908. Against this it could be said, in my view, that the Council — in the event of a positive decision — would only have passed a resolution of principle which would have needed to be applied by the competent institutions according to the circumstances of those affected.

Further, in my opinion, it is not right to base the determination of the legal nature of a measure only on the period to which it is to apply; the subject-matter of the regulation should rather be the criterion. If this is so, then it must be recognized that measures on adjustment of salary scales which apply to the whole staff and for a considerable period of time can only issue in the form of a regulation and that even where they have only retrospective effect they cannot be equated with a decision affecting numerous persons (Allgemeinverfügung) within the meaning of German administrative law, that is a measure which as the result of a particular happening is passed to deal with a special situation. In other words, it must be admitted that an act which is intended to supplement or amend a regulation, no matter how long it is to apply, has likewise the character of a regulation.

I am therefore of the opinion that the Commission has rightly given its proposal the form of a regulation and that as a result, in view of the Council's decision to reject it, trade unions have no direct right of action.

Accordingly it is actually not necessary to go into the further question raised as to whether, if we were not dealing with a regulation, the applicants would be directly and individually concerned, that is whether it may be accepted that associations, including trade unions, can under Community law bring actions before the Court in defence of the collective interests of their members, or even of all officials. I would like however to say a word on this, since this last-mentioned question was dealt with in great detail by the applicants at the hearing.

First of all I would like to stress in this connexion that in contrast to the applicants I cannot see support for an affirmative answer to the question raised in the said judgments in Cases 715/73 an 18/74.

It is true that in these judgments it is said that these associations, that is trade unions, are free to do anything lawful to protect the interests of their members as employees and it is added that the right of action is one of the means available for use by such associations. It is however stated in the following sentence: ‘Under the Community legal system, however, the exercise of this right is subject to the conditions determined by the system of forms of action provided for under the Treaties establishing the Communities’, and until now these conditions have not been understood as allowing associations to bring actions in the defence of collective interests. Additionally it appears to me significant that it is also stated that a staff association capable of being a party to proceedings could under the second paragraph of Article 173 of the EEC Treaty institute proceedings against decisions addressed to it within the meaning of that provision. On the other hand — and quite part from the last remark — the judgment in Case 18/74 even supports an argument contrary to that of the applicants. In this case it was a question of a measure of general effect, namely the direction to stop the salaries of such officials and staff of the Commission as had taken part in a strike. The possibility of bringing proceedings under Article 173 was also discussed. The Commission examined the power of the applicant trade union to act for collective interests and on behalf of the union it was stated that the measure taken directly affected the trade union and professional rights of the applicant itself. It is true that this application was rejected on the grounds that it was based on Article 91 of the Staff Regulations. It may however be assumed that the Court would not have rejected the application if it had been impressed by the arguments on Article 173 that under Community law trade unions were in fact able to bring actions in defence of collective interests.

If the legal position in the Member States is considered with a view to obtaining a general legal principle which could be significant in the interpretation of Community law, the legal position is in no way uniform.

On the one hand there is the French and Belgian law under which trade unions are obviously allowed to bring proceedings in the defence of collective interests. This is possible when it is a question of individual acts which affect numerous non-identifiable persons and when regulations are concerned relating to the Staff Regulations (cf. Waline, Droit administratif, 8th Edition, No 770; Auby et Drago, Traité du contentieux administratif 1962, Vol. 2, No 1035; Plantey, Traité pratique de la fonction publique, 3rd Edition, Vol. 2, No 3033 et seq.; Belgian Conseil d'État, Recueil des Arrets et Avis du Conseil d'État 1967, No 12521). The position is otherwise in Italy, the Netherlands, the United Kingdom and the Federal Republic of Germany. Under the case-law of the Italian Consiglio di Stato, just as under the law of the Netherlands associations cannot bring actions in defence of rights and interests belonging to the whole category of persons represented (cf. Decisioni del Consiglio di Stato 1969, p. 1760; Rapport van de Commissie inzake algemene Bepalingen van administratiefrecht 1971, p. 208). In the United Kingdom there is likewise no case-law allowing trade unions to litigate decisions affecting their members. Under German law the general rule, that associations cannot bring actions in defence of the collective interests of their members but only if the group's own interests are concerned, applies to trades unions too, apart from a few exceptions expressly provided for in the laws (cf. Naumann, Klagbefugnis von Verbänden im Verwaltungsprozeß, Die öffentliche Verwaltung 1971, p. 378 et seq.). No doubt there are considerations here which are concerned with the problems of legal validity and the intended exclusion of the actio popularis and possibly also the difficulties relating to the definition of cases in which a collective interest is clearly apparent.

Accordingly there can certainly be no question of a general legal principle under which trade unions have a comprehensive right of action to defend collective interests.

In addition there is the observation that clear guidelines against the admissibility of actions of this nature arise from the special system of protection of rights under the Treaty, which, as we have seen, applies also to actions by trade unions. To this extent it is significant that the system of protection of rights under the Treaty, as far as private individuals are concerned, is not a copy of the national systems, which are sometimes more extensive. Decisive significance is attached to the requirement of being directly and individually affected. An impartial interpretation must probably recognize that a plaintiff has to show an infringement of his own rights or interests. At any rate the case-law has so far been along these lines. It shows a clear tendency to exclude professional associations from being able to bring actions in their own name and on their own account even if they include all those interested in a measure. On this I refer to the judgment which has already been mentioned in Cases 16 and 17/62. Here an action by an association was rejected because the members of the association were affected by the measure objected to in the same way as the members of a whole class of persons. It was expressly stated that the view that an association which represents a category of natural or legal persons is concerned individually by a measure affecting the general interests of the persons in that category, was untenable. Without going now any further into the question, therefore, I tend to share the view of Mr Advocate-General Trabucchi in his opinion in Case 18/74 that trade unions may only bring actions for the protection of their own functional interests, that is to defend rights which are connected with their intrinsic functions and not for the defence of the interests of their members.

Accordingly the consequence for the present case is quite clear: it must not be forgotten that it is clearly a question of the financial interests of the officials, that is the adjustment of their salaries. The interests of the trade unions themselves, according to the basic tendency of our case-law, is on the other hand not to be discerned. They do not arise from the fact that the members have generally transferred the defence of their interests to the trade unions and that the object of the association is to take charge of the interests of the members. Nor can the interests of the trade unions themselves be inferred from the fact that representatives of the staff took part in the discussions which led to the decision of the Council of 21 March 1972, that is, the decision, the correct application of which is now in dispute.

Accordingly, if the view of the legal nature of the act in dispute is not shared, it should be kept in mind that the actions by the trade unions, in so far as they relate to the application for annulment, must be rejected as inadmissible on the ground that only a collective infringement of the interests of the whole staff can be shown and not an infringement of the interests of the trade unions themselves.

If in this respect the Council's view, that it is not a question of an independent application but pleadings which must be considered in connexion with the application for annulment, is not accepted, the following observations are pertinent.

Under the second paragraph of Article 215, to which Article 178, merely conferring jurisdiction, refers, the Community, in the case of non-contractual liability, has, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties. It is thus essentially a question of the liability for the so-called breach of official duty. This most probably should be understood as meaning that an applicant must show that he himself has suffered damage as a result of a mistake by an official. On the other hand it is not sufficient to maintain that damage has been caused to another. Since in the present case the applicant trade unions do not allege that they have themselves suffered damage, even as parties to the negotiations on the salary adjustments, because only the officials and other servants of the Communities come into question as having suffered damage, a right of action by the trade unions must be rejected on this ground alone.

There are other important objections. An action for breach of official duty can in my view be regarded as admissible only if as far as the official error is concerned it contains a substantiated ground. In this respect it is said in the application only that the decision of the Council of 22 and 23 July 1974 is defective. This in my view cannot be regarded as a substantiated ground of action. Moreover, it must not be overlooked that the alleged damage has been caused by erroneous salary adjustments in the previous years. For this compensation is sought; it should therefore have been shown that an official error had thereby been made. The application likewise contains no substantiated allegation in this respect.

Without going into other arguments in the action, I am therefore of the view that the application cannot be regarded as admissible in so far as it is based on the second paragraph of Article 215 of the EEC Treaty.

3. To summarize, I propose that the Council's contention should be accepted and the action dismissed as inadmissible. Since in the present case Article 70 of the Rules of Procedures does not apply, the costs of the proceedings must be borne by the applicants.

(1) Translated from the German.