2 September 2021 (*1)

[Text rectified by order of 29 September 2021]

(Appeal – Law governing the institutions – Social policy – Articles 154 and 155 TFEU – Social dialogue between management and labour at EU level – Informing and consulting civil servants and employees of central government administrations of the Member States – Agreement concluded between the social partners – Joint request of the signatories to that agreement seeking its implementation at EU level – Refusal of the European Commission to submit a proposal for a decision to the Council of the European Union – Standard of judicial review – Obligation to state reasons for the decision refusing to submit the proposal)

In Case C‑928/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 December 2019,

European Federation of Public Service Unions (EPSU), established in Brussels (Belgium), represented by R. Arthur, Solicitor, and K. Apps, Barrister,

appellant,

the other parties to the proceedings being:

Jan Willem Goudriaan, residing in Brussels, represented by R. Arthur, Solicitor, and K. Apps, Barrister,

applicant at first instance,

European Commission, represented by I. Martínez del Peral, M. Kellerbauer and B.‑R. Killmann, acting as Agents,

defendant at first instance,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal, M. Vilaras, E. Regan, N. Piçarra and A. Kumin, Presidents of Chambers, E. Juhász, M. Safjan, S. Rodin, F. Biltgen, K. Jürimäe, C. Lycourgos, P.G. Xuereb and N. Jääskinen (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: M. Longar, Administrator,

having regard to the written procedure and further to the hearing on 26 October 2020,

after hearing the Opinion of the Advocate General at the sitting on 20 January 2021,

gives the following

1.By its appeal, the European Federation of Public Service Unions (EPSU) asks the Court of Justice to set aside the judgment of the General Court of the European Union of 24 October 2019, EPSU and Goudriaan v Commission (T‑310/18, EU:T:2019:757; ‘the judgment under appeal’), by which the General Court dismissed the action for annulment of the decision of the European Commission of 5 March 2018 (‘the contested decision’) refusing to submit to the Council of the European Union a proposal for a decision implementing at EU level the agreement entitled ‘General framework for informing and consulting civil servants and employees of central government administrations [of the Member States]’, concluded between the Trade Unions’ National and European Administration Delegation (TUNED) and European Public Administration Employers (EUPAE) (‘the agreement at issue’).

Legal context

2.As set out in Article 151 TFEU:

‘The [European] Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.

To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy.

They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action.’

3.The first paragraph of Article 152 TFEU provides:

‘The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.’

4.Article 153(1)(e) TFEU provides:

‘1. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields:…’

the information and consultation of workers;

5.Article 154 TFEU states:

‘1. The Commission shall have the task of promoting the consultation of management and labour at Union level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties.

3. If, after such consultation, the Commission considers Union action advisable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall forward to the Commission an opinion or, where appropriate, a recommendation.

6.Article 155 TFEU provides:

‘1. Should management and labour so desire, the dialogue between them at Union level may lead to contractual relations, including agreements.

The Council shall act unanimously where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Article 153(2).’

Background to the dispute and the contested decision

7.The background to the dispute is set out in paragraphs 1 to 6 of the judgment under appeal and, for the purposes of the present proceedings, may be summarised as follows.

8.By consultation document C(2015) 2303 final of 10 April 2015, entitled ‘First phase consultation of Social Partners under Article 154 TFEU on a consolidation of the EU Directives on information and consultation of workers’, the Commission, in accordance with Article 154(2) TFEU, invited the social partners – management and labour – to express their views on the possible direction of EU action concerning a consolidation of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16), Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) and Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29) (together, ‘the directives on information and consultation of workers’). That consultation concerned inter alia the possible extension of the scope of application of the directives on information and consultation of workers to cover civil servants and employees of central government administrations of the Member States.

9.On 2 June 2015, the social partners sitting on the Social Dialogue Committee for Central Government Administrations (SDC CGA) – namely TUNED, on the one hand, and EUPAE, on the other hand – informed the Commission on the basis of Article 154(4) TFEU of their desire to negotiate and to conclude an agreement on the basis of Article 155(1) TFEU.

10.On 21 December 2015, TUNED and EUPAE signed the agreement at issue.

11.By letter of 1 February 2016, TUNED and EUPAE jointly requested the Commission to submit to the Council a proposal for a decision implementing the agreement at issue at EU level, on the basis of Article 155(2) TFEU.

12.On 5 March 2018, the Commission adopted the contested decision, by which it refused to submit such a proposal for a decision to the Council.

13.In the contested decision, first, the Commission stated, in essence, that central government administrations of the Member States were under the authority of the Member States’ governments, that they exercised the powers of a public authority and that their structure, organisation and functioning were entirely the responsibility of the Member States. Second, the Commission noted that provisions ensuring a certain degree of information and consultation of civil servants and employees of those administrations already existed in many Member States. Third, the Commission observed that the size of those administrations depended on the degree of centralisation or decentralisation of the Member States, so that, in the event of implementation of the agreement at issue by a Council decision, the level of protection of the civil servants and employees concerned would vary considerably across Member States.

The proceedings before the General Court and the judgment under appeal

14.By application lodged at the Registry of the General Court on 15 May 2018, EPSU – an association which brings together European trade unions representing public service workers and which created TUNED jointly with the Confédération européenne des syndicats indépendants (European Confederation of Independent Trade Unions) (CESI) – and Mr Jan Willem Goudriaan, Secretary General of EPSU (together, ‘the applicants’), sought the annulment of the contested decision.

15.The applicants put forward two pleas in law in support of their action. By their first plea, alleging an error of law as to the scope of the Commission’s powers, they submitted, in essence, that under Article 155(2) TFEU the Commission could not refuse to submit to the Council a proposal for a decision implementing the agreement at issue at EU level. Their second plea alleged that the contested decision was based on manifestly insufficient and mistaken reasons.

16.[As rectified by order of 29 September 2021] By the judgment under appeal, the General Court dismissed the applicants’ action in its entirety and ordered each party to bear its own costs.

17.In particular, as regards the examination of the action’s merits, the General Court rejected the first plea, inter alia interpreting Article 155(2) TFEU – in paragraphs 49 to 90 of the judgment under appeal – from a literal, contextual and teleological viewpoint and concluding therefrom that the EU institutions are not bound to give effect to a joint request submitted by the signatories to an agreement seeking the implementation of that agreement at EU level. It then examined, in paragraphs 91 to 102 of the judgment, the EU rules, principles and objectives relied on by the applicants in support of their interpretation of that provision. It concluded, in paragraph 104 of the judgment, that, by refusing to submit to the Council a proposal for a decision implementing the agreement at issue at EU level, the Commission had not committed an error of law as to the scope of its powers.

18.So far as concerns the second plea, in paragraphs 106 to 140 of the judgment under appeal the General Court examined whether the Commission had complied in the contested decision with the obligation to state reasons laid down in Article 296 TFEU and whether the reasons set out in that decision were well founded. After holding that the contested decision had to be the subject of a limited review, the General Court found that that decision satisfied the obligation to state reasons laid down in Article 296 TFEU and that the three contested reasons in the decision were well founded.

Forms of order sought by the parties before the Court of Justice

19.By its appeal, EPSU claims that the Court should:

–set aside the judgment under appeal;

–annul the contested decision; and

–order the Commission to pay the costs of the proceedings at first instance and the appeal.

20.The Commission contends that the Court should:

–dismiss the appeal; and

–order EPSU to pay the costs.

21.By document lodged at the Court Registry on 2 March 2020, Mr Goudriaan informed the Court that he did not wish to be party to the appeal proceedings.

The appeal

22.EPSU puts forward four grounds in support of its appeal.

23.It is appropriate to examine in turn the second, first, third and fourth grounds of appeal.