Provisional text

11 December 2024 (*1)

( Law governing the institutions – Agreement concluded between the Council and trade union or professional organisations for the implementation of Article 10c of the Staff Regulations – Procedure for verifying the criteria for the recognition and representativeness of trade union or professional organisations – Note providing information about the outcome of the verification procedure – Obligation to state reasons – Principle of good administration – Principle of performance in good faith – Freedom of association )

In Case T‑179/23,

Council section of the European Civil Service Federation (FFPE, Council section), established in Brussels (Belgium), represented by A. Champetier and S. Rodrigues, lawyers,

applicant,

Council of the European Union, represented by M. Bauer and I. Demoulin, acting as Agents,

defendant,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of S. Papasavvas, President, L. Truchot (Rapporteur), H. Kanninen, M. Sampol Pucurull and T. Tóth, Judges,

Registrar: L. Ramette, Administrator,

having regard to the order of 9 June 2023, FFPE Council section v Council (T‑179/23 R, not published, EU:T:2023:328),

having regard to the written part of the procedure,

further to the hearing on 12 July 2024,

gives the following

1By its action, the applicant, the Council section of the European Civil Service Federation (FFPE, Council section) seeks, first, on the basis of Article 263 TFEU, the annulment of the note of the Council of the European Union of 3 April 2023 on the outcome of the second verification procedure concerning it, in so far as that note suspends the rights conferred on it as a representative trade union or professional organisation (‘OSP’) (‘the contested decision’) and, second, on the basis of Article 268 TFEU, compensation for the non-material damage allegedly suffered by virtue of that fact.

2Under Article 10c of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), ‘each institution may conclude agreements concerning its staff with its representative [OSPs]. Such agreements may not entail amendment of the Staff Regulations or any budgetary commitments, nor may they affect the working of the institution concerned. The representative [OSPs] which are signatories shall operate in each institution subject to the statutory powers of the staff committee’.

3On 28 March 2006, with a view to implementing that provision, the Council and a number of OSPs of the General Secretariat of the Council (GSC), including the applicant, signed in Brussels (Belgium) a document entitled ‘Agreement between the Council of the European Union and the Trade Union or Professional Organisations of the Staff of the General Secretariat of the Council’, in order to lay down criteria for the recognition and representativeness of the OSPs of the Council (‘the Agreement’).

4Article 2 of the Agreement, which concerns the recognition of OSPs, lays down the principle of official recognition of OSPs of the staff of the GSC. Thus, Article 2(2)(f) of the Agreement states that OSPs are to be recognised if they prove that they have within the GSC at least 60 members entitled to vote and stand as candidates in Staff Committee elections who are paid-up members of their OSP (‘the recognition threshold’).

5In accordance with Article 13 of the Agreement, recognised OSPs may use the translation, reproduction, dissemination and communication resources of the GSC, including a “home page” on its intranet site, hold meetings outside working hours on the premises of the GSC, have use of a standard office, to be shared with the other recognised OSPs, and grant the persons responsible for recognised OSPs or their delegates special leave of not more than four days a year to enable them to take part in trade union meetings or congresses outside the GSC as well as special leave for training purposes for trade union courses under the same conditions as for staff training.

6Article 4(1) of the Agreement on the representativeness of OSPs provides that the Council is to regard recognised OSPs as representatives with the GSC provided that they have, within that institution, at least 300 members entitled to vote and stand as candidates in Staff Committee elections who are paid-up members of their OSP, including former officials or other servants of the GSC who are entitled to a Community pension and are members of an OSP, up to a maximum of 50 members (‘the representativeness threshold’).

7According to a document annexed to the Agreement and entitled ‘Arrangements relating to the provision of resources for representative OSPs within the meaning of Article 4 of the Agreement’ (‘the Annex’), representatives are to have temporarily seconded staff members, secretarial back-up, equipped offices and mobile telephones for each full-time seconded staff member, as well as collective access to a multipurpose area of 27 m².

8In addition, Article 5(1) of the Agreement, which concerns the verification of certain criteria relating to the recognition and representativeness of OSPs, provides that the number of members of the OSPs which are signatories to the Agreement (‘the cosignatory OSPs’) is to be notified by means of a sworn statement by the President of each of those OSPs to an independent body chosen by mutual agreement; that statement is to specify the number of members who are officials or other servants of the GSC, and the number who are former officials or other servants of the GSC entitled to a Community pension.

9That provision also specifies that the independent body referred to in paragraph 8 above is to verify whether the cosignatory OSPs reach, inter alia, the recognition and representativeness thresholds and to establish the relative weight of each representative OSP (‘the verification procedure’). On competition of that verification procedure, that body is to inform the relevant OSPs and the Appointing Authority of the outcome of its findings, without however divulging any information obtained as part of that process.

10Lastly, the first subparagraph of Article 5(3) of the Agreement provides that the sworn statement referred to in paragraph 8 above is to be forwarded and the verification procedure performed every three years and in the case of any OSP wishing to join the Agreement.

11By a note of 29 March 2022, the ‘Organisational Development and Services’ Directorate-General of the GSC informed the cosignatory OSPs that a verification procedure would be implemented pursuant to Article 5 of the Agreement.

12On 3 and 17 May 2022, the GSC held meetings with the cosignatory OSPs at which it gave them the draft mission letter which was to be sent to the independent body referred to in Article 5 of the Agreement (‘the first mission letter’). In the course of those meetings, the representatives of the three cosignatory OSPs expressed the wish that the reference date taken into account by that body for the purpose of drawing up the lists of their members (‘the first reference date’) be set as 31 July 2022.

13On 17 June 2022, the GSC informed the cosignatory OSPs, in essence, that a bailiff established in Brussels (‘the bailiff’) had agreed to conduct the verification procedure and that the first reference date was set as 31 May 2022.

14In the course of September 2022, the bailiff examined, in the context of the verification procedure referred to in paragraph 13 above (‘the first verification procedure’), the information provided by the cosignatory OSPs in order to assess whether they reached the recognition and representativeness thresholds.

15On 20 October 2022, the bailiff produced a report from which it is apparent that, as at 31 May 2022, the applicant had not reached the recognition threshold nor, as a result, the representativeness threshold (‘the first report’).

16By a note of 24 November 2022 (‘the note of 24 November 2022’), the General Secretary of the Council noted, inter alia, that the applicant did not meet the criteria laid down in Article 2(2)(f) and Article 4(1) of the Agreement and invited it to comply with those criteria within three months, in accordance with the procedure provided for in the first subparagraph of Article 6(1) of the Agreement.

17On 30 November 2022, the GSC published on its intranet a notice stating that, unlike the other two cosignatory OSPs, the applicant no longer reached the recognition and representativeness thresholds laid down in the Agreement and that it had three months to rectify that situation.

18On 16 January 2023, the GSC sent the applicant a new draft mission letter addressed to the bailiff in order for a fresh verification of the applicant’s situation to be conducted having regard to the recognition and representativeness thresholds (‘the second verification procedure’).

19On 19 January 2023, the GSC and the applicant attended a meeting in the course of which, on the one hand, the applicant requested that, in the context of the second verification procedure, the bailiff draw up the list of its members on the basis of a reference date (‘the second reference date’) after 17 April 2023 and, on the other hand, the GSC stated that, according to its interpretation of the Agreement, that second reference data had to be set as 28 February 2023, because that date corresponded to the end of the three-month deadline triggered by the note of 24 November 2022.

20In the course of March 2023, the bailiff examined the information provided by the applicant in the context of the second verification procedure.

21On 28 March 2023, the bailiff sent the applicant a second report, dated 27 March 2023, which stated that, in the light of the official lists of officials and other servants and of former officials and other servants drawn up, respectively, on 28 February and 1 March 2023, the applicant met the conditions for recognition laid down in the Agreement, including the criterion provided for in Article 2(2)(f) of the Agreement, but that it did not reach the representativeness threshold laid down in Article 4(1) of the Agreement (‘the second report’).

22By the contested decision, the GSC informed the applicant of the suspension of the rights held by the applicant pursuant to Article 14 of the Agreement as a representative OSP. Furthermore, the GSC informed the applicant that the resources provided for in Article 13 of the Agreement would continue to be made available to the applicant as a recognised OSP.

II. Forms of order sought

23The applicant claims that the Court should:

– annul the contested decision;

– order the Council to pay token damages of EUR 1 for the non-material damage allegedly suffered;

– order the Council to pay the costs.

24 The Council contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

III. <b>Law</b>

25In support of the claim for annulment, the applicant relies, in essence, on three pleas in law, alleging, first, infringement of Article 5 of the Agreement and irregularities during the first verification procedure, second, breach of the spirit of sincere cooperation flowing from the Agreement, the principle of good administration, the principle of proportionality and the principle of performance in good faith of agreements and, third, violation of the fundamental right to freedom of association.

26In addition, in response to a measure of organisation of procedure, the applicant raised, in essence, a fourth plea in law, alleging a failure to state adequate reasons for the contested decision.

27Since it has been consistently held that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which must, if necessary, be raised by the EU judicature of its own motion (see judgment of 12 July 2023, Eurecna v Commission, T‑377/21, EU:T:2023:398, paragraph 18 and the case-law cited), the Court considers it appropriate, in the light of the specific circumstances of the present case, to rule on the fourth plea in law before examining in turn the three other pleas raised by the applicant.

28The applicant submits, in essence, that, since the validity of the contested decision is conditional upon non-compliance with the representativeness threshold, the second report should have clearly stated the exact number of members which the bailiff had used to come to the conclusion that the applicant had not reached that threshold. Accordingly, the applicant is unable to ascertain the reasons why it did not reach that threshold or, accordingly, the primary justification for the contested decision, such that it is able to defend its rights, in breach of the obligation to state reasons to which acts of the EU institutions are subject.

29The Council disputes the applicant’s claims.

In that regard, according to settled case-law, the statement of reasons for acts of the EU institutions required by Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to carry out its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for an act meets the requirements of the provisions cited above must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraph 78).

In addition, the absence of a statement of reasons may be found even where the decision in question contains certain elements of reasoning. Thus, a contradictory or unintelligible statement of reasons amounts to a failure to state reasons. The same applies where the statement of reasons in the decision in question is so incomplete that it does not in any way enable the addressee, in the context of its adoption, to understand its author’s reasoning (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).

In the present case, first, it is made clear in the contested decision that the bailiff appointed to carry out the second verification procedure had issued his report on 28 March 2023 and that, according to that report, the applicant met the conditions to be regarded as a recognised OSP but not as a representative OSP.

Second, it is apparent from the information contained in the second report, to which the contested decision expressly refers, that, in the light, inter alia, of an official list of officials and other servants of the GSC drawn up on 28 February 2023 and another official list of former officials and other servants of the GSC drawn up on 1 March 2023, the applicant reached the recognition threshold of at least 60 members laid down in Article 2(2)(f) of the Agreement but did not reach the representativeness threshold of at least 300 members entitled to vote and stand as candidates in Staff Committee elections and who are paid-up members, provided for in Article 4(1) of the Agreement, and the shortfall determined was not less than 20 members.

Thus, it must be held that the contested decision, which was adopted pursuant to the Agreement cosigned by the applicant, came after the bailiff sent the second report to the applicant on 28 March 2023, in circumstances with which the applicant was familiar.

In addition, by referring, inter alia, to the Agreement and to the second report, the contested decision set out both the points of law and the facts which were of crucial significance in the scheme of that decision and which enabled both the applicant and the Court to assess the lawfulness of that decision.

It is true that neither the contested decision nor the second report, in accordance with the second subparagraph of Article 5(1) of the Agreement, states the exact number of members used by the bailiff to find that the applicant did not reach the representativeness threshold.

It is, however, apparent from reading the contested decision together with the second report that the applicant’s number of members, as calculated by the bailiff, was greater than or equal to the recognition threshold but fell below the representativeness threshold, and that the shortfall determined was not less than 20 members, that is to say, the applicant had between 60 and 280 members.

Accordingly, the statement of reasons for the contested decision is neither contradictory nor unintelligible and discloses in a clear and unequivocal fashion the reasoning followed by the institution which adopted that decision.

The fourth plea in law, alleging a failure to state adequate reasons, must therefore be rejected as unfounded.

The first plea in law, alleging infringement of Article 5 of the Agreement and irregularities during the first verification procedure

The first plea essentially consists of two parts, alleging, first, infringement of Article 5 of the Agreement during the first verification procedure and, second, irregularities affecting the first report.

The Council disputes the applicant’s claims.

First of all, it must be observed that, by the line of argument put forward in support of the first plea, the applicant criticises, as an incidental plea, the lawfulness of the first verification procedure which led the Council to adopt the note of 24 November 2022 and the merits of that note.

In that regard, it must be recalled that, according to settled case-law, while measures of a purely preparatory character may not themselves be the subject of an action for annulment, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step (see judgment of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission, C‑572/18 P, EU:C:2021:317, paragraph 50 and the case-law cited).

In the present case, it must be observed that the note of 24 November 2022 is the result of applying the second subparagraph of Article 6(1) of the Agreement, under which any OSP which was representative but which no longer reached the representativeness threshold is invited by the Secretary-General to comply with the criterion laid down in Article 4(1) of the Agreement within a maximum of three months, failing which its rights as a representative OSP are to be suspended.

Thus, the note of 24 November 2022, which did not set out the Council’s definitive position as to whether the applicant was still to be regarded as representative in accordance with the Agreement, corresponded, pursuant to Article 6 of the Agreement, to a preliminary stage of the procedure which led to the adoption of the contested decision, which does set out that definitive position.

Accordingly, since the note of 24 November 2022 is a measure of a purely preparatory character, the applicant may, in accordance with the case-law cited in paragraph 43 above, criticise, as an incidental plea, the first verification procedure which led to the adoption of that note as well as the merits of the note.

The first part, alleging infringement of Article 5 of the Agreement during the first verification procedure

In support of this part, the applicant puts forward two complaints, alleging, first, infringement of Article 5(1) of the Agreement and, second, infringement of Article 5(3) thereof.

The first complaint, alleging infringement of Article 5(1) of the Agreement

The applicant claims, first, that the choice of the independent body was imposed on the OSPs by the Council in connection with the implementation of the first verification procedure and, second, that the OSPs did not approve the content of the first mission letter.

In that regard, it must be recalled, firstly, that the first subparagraph of Article 5(1) of the Agreement, which concerns the verification of certain criteria relating to the recognition and representativeness of OSPs, provides that the number of members of OSPs is to be notified by means of a sworn statement by their respective presidents to an independent body chosen by mutual agreement.

In the present case, it is apparent from the note referred to in paragraph 11 above that, on 29 March 2022, the GSC invited the cosignatory OSPs to appoint an independent body by mutual agreement and thus proposed to them entrusting the performance of the first verification procedure to the same bailiff whose services had been called upon in 2010 and 2014.

In addition, it is apparent from the minutes of the meeting of 3 May 2022 between the Council and the cosignatory OSPs, which are contained in an email sent by a legal adviser in the competent unit of the ‘Organisational Development and Services’ Directorate-General to her Head of Unit, that all the cosignatory OSPs agreed to the GSC’s proposal to entrust the performance of the first verification procedure to the same bailiff whose services had been called upon for the last verification procedure.

Finally, it is not apparent from the file that the cosignatory OSPs made representations to the GSC concerning the appointment of the bailiff such as to raise doubts as to the probative nature of the information contained in the minutes of the meeting of 3 May 2022 referred to in paragraph 51 above.

The applicant’s claim that the Council chose the independent body tasked with conducting the first verification procedure on its own and not by mutual agreement with the OSPs concerned must therefore be rejected as factually unsubstantiated.

Second, it must be observed that neither Article 5(1) of the Agreement nor other provisions of the Agreement requires the Council to send a mission letter to the independent body tasked with implementing a verification procedure, and therefore no provision of the Agreement required the Council to obtain the consent of the cosignatory OSPs to the contents of the first mission letter.

Therefore, the first complaint is unfounded and must be rejected.

The second complaint, alleging infringement of Article 5(3) of the Agreement

The applicant claims, in essence, that the contested decision was adopted belatedly, having regard to the three-year schedule for verification of the recognition and representativeness thresholds.

In that regard, it follows from Article 5(3) of the Agreement, which concerns the verification of certain criteria relating to the recognition and representativeness of OSPs, that, without prejudice to extraordinary verifications of the recognition criteria which may be implemented at the request of any recognised OSP, the verification procedures for the cosignatory OSPs are to be performed every three years. In addition, Article 16(5) of the Agreement, which lays down transitional and final provisions, stated that the first verification of the criteria relating to recognition and representativeness provided for in Article 5 of the Agreement was to take place within six months of the signing of the Agreement, that is to say, no later than 28 September 2006.

In the present case, it is apparent from the file that not only were the verification procedures implemented from the signing of the Agreement onwards completed on 15 May 2007, 24 June 2010 and 14 January 2014, and therefore belatedly having regard to the three-year schedule following from the provisions referred to in paragraph 57 above, but that a verification procedure was not performed between that conducted on 14 January 2014 and the first verification procedure.

Moreover, it is apparent from the explanations provided by the Council that the first verification procedure was delayed by the negotiations for the revision of the Agreement held in 2017 and 2018, the purpose of which was, inter alia, to simplify the arrangements for measuring the representativeness of the cosignatory OSPs, and then by the COVID-19 pandemic.

Although the applicant does not contest the substance of those explanations, it does however consider that they do not justify the failure to conduct a verification between the end of the negotiations for the revision of the Agreement and the start of the COVID-19 pandemic.

Nevertheless, while it is true that the Agreement does not provide for any derogation from the three-year schedule following from Article 5(3) and Article 16(5) thereof, it must be observed, first of all, that the purpose of that schedule is to guarantee that the conditions for the recognition and representativeness of the OSPs of the Council, as laid down in the Agreement, are verified at regular intervals, so as to ensure that structured relationships exist between those OSPs and that institution, without the expiry of the deadline fixed by that schedule automatically entailing the loss of the rights enjoyed by recognised and representative OSPs.

In addition, it must be observed that the signatories to the Agreement did not include a provision intended to prevent and penalise non-compliance with the three-year schedule resulting from Article 5(3) and Article 16(5) of the Agreement. Thus, by adopting that schedule for the implementation of the verification procedures, the Council, with the consent of the cosignatory OSPs, did not intend to require compliance with that schedule, failing which those procedures would be null and void, or to make those provisions mandatory, but sought rather to set an objective that the conditions for the recognition and representativeness of the OSPs of the Council would be verified at regular intervals.

Accordingly, non-compliance with the schedule laid down in the Agreement cannot be regarded as infringement of an essential procedural requirement but must rather be viewed as a procedural irregularity.

In addition, it must be recalled that, according to settled case-law, a procedural irregularity entails the annulment of a decision adopted at the end of the administrative procedure in question only if, had it not been for that irregularity, the outcome of that procedure could have been different. In that context, an applicant relying on a procedural irregularity cannot be required to show that the content of the decision of the EU institution concerned would have been different, but merely that such a scenario is not entirely precluded; furthermore, that issue must be assessed according to the specific points of fact and of law of each individual case (see judgment of 6 October 2021, AV and AW v Parliament, T‑43/20, not published, EU:T:2021:666, paragraph 94 and the case-law cited).

It must be observed that, in the present case, the applicant fails to adduce prima facie evidence that it had a sufficient number of members to be recognised as representative on the dates on which its representativeness should have been determined if the three-year schedule laid down in the Agreement had been observed. Accordingly, the applicant does not establish that it was not entirely precluded that, had it not been for the irregularity relied on, the content of the contested decision could have been different.

66Moreover, as the Council argues, the failure to conduct a verification procedure did not have negative consequences for the applicant’s situation, since the latter had at its disposal, without interruption, the resources provided to representative OSPs for the nine years between the verification procedure of 14 June 2014 and the procedures which led to the initiation of these proceedings.

67This complaint must therefore be dismissed.

(b) The second part, alleging irregularities affecting the first report

68In support of this part, the applicant essentially puts forward four complaints, based, first, on an incorrect reference in the first report, second, on the bailiff’s non-compliance with the timeline set out in the first mission letter, third, on an error relating to the first reference date and, fourth, on the inaccuracy of the first report.

(1) The first complaint, based on an incorrect reference in the first report

69The applicant claims that the first report is vitiated by a factual error since it states that the first mission letter was drawn up by mutual agreement between the Council and the cosignatory OSPs.

70In that regard, it must be recalled that no provision of the Treaties requires the Courts of the European Union to examine, in any circumstances, the merits of the pleas in law or arguments raised in support of the applicants made to them. On the contrary, those Courts may, inter alia, for reasons relating to the effective administration of justice, refrain from examining the merits of pleas in law or arguments which must be dismissed as inadmissible or ineffective (see, to that effect and by analogy, judgment of 29 September 2022, HIM v Commission, C‑500/21 P, not published, EU:C:2022:741, paragraphs 72 and 73).

71In the present case, while it is true that the first report refers, in its preliminary comments, to ‘the mission letter from the Council, in agreement with the [OSPs], in connection with the verification of the numbers of members in the “organisations” within the meaning of that agreement’, it is apparent from paragraph 54 above that no provision of the Agreement required the Council to obtain the OSPs’ consent to the first mission letter addressed to the bailiff.

72Therefore, the words cited in paragraph 71 above, which appear in the first report, even assuming that they are inaccurate, have no bearing on the content or the validity of that report and do not, therefore, affect the lawfulness of the note of 24 November 2022 or of the contested decision. In that regard, it must be added that the applicant does not produce any evidence to show that those words adversely affected the first verification procedure or the first report.

73This complaint must therefore be dismissed as ineffective.

(2) The second complaint, based on the bailiff’s non-compliance with the timeline set out in the first mission letter

74The applicant claims that the first verification procedure was conducted in the course of September 2022, whereas it should have been completed no later than 31 July 2022, in accordance with the mandate entrusted to the bailiff by the first mission letter.

75In that regard, it is true that, according to the wording of the first mission letter, the bailiff was to complete the first verification procedure no later than 31 July 2022, and that it is apparent from the first report that that procedure was conducted on 1, 6, 9 and 29 September 2022, with the report having been produced on 20 October 2022.

76However, in the first place, it is not apparent from the first mission letter or from the provisions of the Agreement that failure to comply with the deadline of 31 July 2022 was to have any effect whatsoever on the lawfulness of the first verification procedure or the validity of the first report.

77In the second place, it is apparent from the first report that, in the context of the first verification procedure, the bailiff calculated the number of members of each cosignatory OSP taking into account the first reference date fixed as 31 May 2022, in accordance with the first mission letter.

78Accordingly, since the bailiff was not authorised to take into account, when calculating the number of members of the cosignatory OSPs, any change in that number after the first reference date of 31 May 2022 and he had to make his findings as at that date, it is not apparent from the file that the failure to comply with the deadline of 31 July 2022 laid down for the final production of his report affected in any way whatsoever the lawfulness of the first verification procedure, the validity of the first report or, therefore, the validity of the note of 24 November 2022 or of the contested decision.

79This complaint must therefore be dismissed as ineffective.

(3) The third complaint, based on an error relating to the first reference date

80The applicant claims that, according to the first mission letter, the bailiff should have carried out the first verification procedure using 31 August 2022 as the first reference date, since it was the last day of the month preceding the performance of the first verification procedure, and not 31 May 2022.

81In that regard, in the first place, it must be recalled that the determination of the reference dates for the verifications of the conditions relating to the recognition and representativeness of the OSPs is not governed by the agreement, and that the first mission letter required the bailiff, in order to carry out the first verification procedure, to contact the ‘Organisational Development and Services’ Directorate-General to obtain an official list of officials and other servants and an official list of former officials and other servants as at 31 May 2022.

82In the second place, the Court cannot accept the interpretation advocated by the applicant that the first reference date to be taken into account in order to calculate the number of members of the cosignatory OSPs should have been the last day of the month preceding the actual verifications conducted by the bailiff, since an interpretation to that effect would have resulted in the Council acting in breach of the principle of legal certainty and, as the case may be, the principle of equal treatment.

83It must be recalled that the fundamental requirement of legal certainty, in its various forms, aims to ensure that situations and legal relationships governed by EU law remain foreseeable (see judgment of 9 March 2023, Galeote and Watson v Parliament, C‑715/21 P and C‑716/21 P, not published, EU:C:2023:190, paragraph 113 and the case-law cited). In particular, it follows from the principle of legal certainty that EU legislation must be certain and its application foreseeable by those subject to it (see, to that effect, judgment of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 34 and the case-law cited).

84Thus, if the interpretation set out in paragraph 82 above had been accepted by the Council, it could have led to the bailiff using different dates for each cosignatory OSP, if, for practical reasons relating to the availability of their leaders or their representatives, the bailiff had been unable to conduct the verifications with which he was tasked in the same month.

86In those circumstances, the implementation of the interpretation set out in paragraph 82 above would have led to the Council acting in breach of the principles of equal treatment and legal certainty, which required it to set a first reference date which was not only the same for all the cosignatory OSPs but was also clear and foreseeable.

87This complaint must therefore be dismissed as unfounded.

(4) The fourth complaint, based on the inaccuracy of the first report

88The applicant claims that the first report is inaccurate because it finds that the applicant did not reach the recognition threshold, whereas the applicant had provided proof, as at the first reference date, that it had at least 221 members.

89In that regard, it is true that, by the note of 24 November 2022, the Council reproduced, on its own account, the bailiff’s finding contained in the first report that it was apparent from the first verification procedure that the applicant no longer reached the recognition threshold.

90However, it must be recalled that, by the contested decision, the Council reversed the finding set out in paragraph 89 above and, on the contrary, stated that the applicant would retain the rights which it derives from the Agreement as a recognised OSP.

91In addition, the applicant does not dispute that it was not stripped of its rights as a recognised OSP between the dates of adoption of the note of 24 November 2022 and of the contested decision.

92Accordingly, any error which might vitiate the first report would have no impact on the lawfulness of the contested decision, and therefore this complaint must be rejected as ineffective.

93The second part of this plea in law must therefore be dismissed, as must the first plea in law in its entirety.

(b) The second plea in law, alleging a breach of the spirit of sincere cooperation flowing from the Agreement, the principle of good administration, the principle of proportionality and the principle of performance in good faith of agreements

94In support of the second plea in law, the applicant essentially relies on three parts, alleging, first, breach of the principle of performance in good faith of agreements, second, breach of the principle of good administration and, more specifically, of the duty to act diligently and the obligation of impartiality and, third, breach of the ‘spirit of sincere cooperation’, as viewed in the light of the principle of proportionality.

95The Council disputes the applicant’s claims.

(a) The first part, alleging breach of the principle of performance in good faith of agreements

96The applicant submits that, as a document negotiated on the basis of an agreement, the Agreement must be performed in good faith, in accordance with the principle of performance in good faith of agreements or of “contractual good faith”, which is a general principle of EU law inspired by the legal traditions common to the Member States.

97Specifically, the applicant alleges that the Council adopted a unilateral approach more comparable to an exercise of authority than to a negotiated act, first, by failing to grant the applicant’s request to defer the first reference date to 31 July 2022 and, second, by initiating the first verification procedure without taking into account certain points of discussion and consideration relating to the situation of certain categories of officials which had been raised by the cosignatory OSPs and were still pending.

98In that regard, it must be recalled that, according to settled case-law, measures directly affecting the collective interest protected by an OSP in the context of its relations with an institution may form the subject of an action for annulment brought by that OSP on the basis of Article 263 TFEU, including where those measures are adopted pursuant to an agreement concluded between the institution concerned and OSPs (see order of 9 April 2014, Colart and Others v Parliament, F‑87/13, EU:F:2014:53, paragraph 40 and the case-law cited; see also, to that effect, order of 31 March 2003, Hecq v Commission, T‑227/02, EU:T:2003:89, paragraph 17 and the case-law cited).

99Thus, it must be held that, according to that case-law, the applicant brought its action on the basis of Article 263 TFEU, and that that legal basis was not contested by the Council.

100It follows that the parties to those proceedings implicitly, but necessarily, took the view that the assessment of the lawfulness of the contested decision did not fall within the jurisdiction of the court with jurisdiction in respect of the agreement.

101Furthermore, it must be observed that the Agreement does not make matters such as the setting of the reference date or the decision to initiate the verification procedure subject to negotiation between the Council and the cosignatory OSPs.

102The applicant cannot therefore effectively allege that the Council acted in breach of the principle of performance in good faith of agreements by setting the first reference date as 31 May 2022 and initiating the first verification procedure without taking account of certain points raised by the cosignatory OSPs.

103It follows from the foregoing that the line of argument alleging breach of the principle of performance in good faith of agreements must be dismissed as ineffective.

105 In support of this complaint, the applicant raises three arguments, alleging, first, breach of the duty to act diligently because the Council initiated the first verification procedure without taking into account certain points of discussion or consideration relating to the situation of certain categories of officials, second, breach of the duty to act diligently because the decisions to initiate the first verification procedure and to set the first reference date were not taken in agreement with the cosignatory OSPs and, third, breach of the obligation of impartiality.

(i) The first argument, alleging breach of the duty to act diligently because the Council initiated the first verification procedure without taking into account certain points of discussion or consideration relating to the situation of certain categories of officials

106 The applicant claims that the Council acted in breach of the duty to act diligently because it initiated the first verification procedure without taking into account certain points of discussion or consideration relating to the situation of certain categories of officials which had been raised by the cosignatory OSPs and were still pending, in particular the situation of officials on secondment, on invalidity or returning from leave on personal grounds or from family leave.

107 In that regard, it must be recalled that the right to good administration, as provided for in Article 41 of the Charter, includes, inter alia, the obligation of impartiality and the obligation to act within a reasonable time, which are protected by paragraph 1 of that article, as well as the duty to act diligently, established by case-law, which requires institutions to act with care and caution by examining all the relevant facts of the individual case (see judgment of 16 June 2022, SGL Carbon and Others v Commission, C‑65/21 P and C‑73/21 P to C‑75/21 P, EU:C:2022:470, paragraphs 30 and 31 and the case-law cited).

108 In addition, it follows from the case-law cited in paragraph 64 above that a procedural irregularity entails the annulment of a decision adopted at the end of the administrative procedure in question only if, had it not been for that irregularity, the outcome of that procedure could have been different.

109 In the present case, it must be observed that the contested decision was adopted on completion of two successive and separate verification procedures, in accordance with the second subparagraph of Article 6(1) of the Agreement. In particular, the number of members taken into account by the Council in reaching the final conclusion that the applicant had not reached the representativeness threshold corresponds to the number determined by the bailiff as at the second reference date in the context of the second verification procedure.

110 However, in the present case, the first argument, which is directed as an incidental plea basis against the first verification procedure, is not repeated by the applicant against the second verification procedure.

111 Thus, first, the applicant neither establishes nor even alleges that the Council prevented the bailiff from taking into account, when calculating the number of its numbers as at the second reference date of 28 February 2023, officials on secondment, on invalidity or returning from leave on personal grounds or from family leave.

112 Second, it is not apparent from the file that any refusal by the Council to take account of the specific situation of certain categories of officials in the context of the first verification procedure influenced the calculation by the bailiff of the number of the applicant’s members in the context of the second verification procedure.

113 This first argument must therefore be dismissed as ineffective.

(ii) The second argument, alleging breach of the duty to act diligently because the decision to initiate the first verification procedure was not taken in agreement with the cosignatory OSPs

114 The applicant claims that, as at the date on which the first verification procedure was initiated, its articles of association did not allow it to organise general meetings by videoconference, that the first general meeting could not be held before the lifting of the health restrictions connected with the COVID-19 pandemic in May 2022, and that any decision of that general meeting on the amount of contributions could take effect only three months later, that is to say, in July 2022, given the quarterly frequency of the calls for contributions.

115 Thus, the applicant submits that, by refusing to take account of those difficulties and to defer the first reference date to 31 July 2022, the Council did not comply with its duty to act diligently by failing to examine all the relevant facts in the file carefully.

116 However, without it being necessary to examine whether or not that argument is effective, it does not appear, in the first place, that, by setting the first reference date as 31 May 2022, the Council failed to comply with its duty to act diligently.

117 Firstly, it must be recalled that Article 5 of the Agreement did not require the Council to obtain the consent of the cosignatory OSPs as to the start date of the verification procedure or the reference date used for the verification of the recognition and representativeness thresholds.

118 Second, no provision of the Agreement required the Council to set the last day of the month preceding the signature of the first mission letter as the first reference date, meaning that it could set a reference date subsequent to the sending of that letter, provided that that date is the same for all cosignatory OSPs and is set sufficiently far in advance. However, such a solution would have had the effect of increasing the duration of the verification procedure and delaying the bailiff’s findings.

119 In such circumstances, first, the cosignatory OSPs would have needed additional time, after the reference date, to analyse the data held by it and to communicate them to the bailiff, in the context of the sworn statement provided for in Article 5(1) of the Agreement. Second, the bailiff would also have needed additional time to analyse and verify those data and the data communicated by the Council.

120 Third, while it is apparent from the concordant information provided by the parties that cosignatory OSPs were aware of the Council’s intention to set the first reference date as 31 May 2022 when the Council provided them with the draft of the first mission letter on 3 May 2022, it follows from paragraph 11 above that the cosignatory OSPs were warned as early as 29 March 2022 of the Council’s intention to initiate the first verification procedure, and they therefore had almost two months to prepare themselves for that procedure which, in the circumstances of the present case, does not appear inadequate.

121 In the second place and in any event, it is not apparent from the file that any breach of the duty to act diligently resulting from the Council’s refusal to defer the first reference date to 31 July 2022 could have influenced the lawfulness of the contested decision.

122 It is true that the applicant complains that, during the first verification procedure, the Council failed to take account of its inability to hold a general meeting, on account of the restrictions connected with the COVID-19 pandemic, in order to adjust the amounts of the contributions payable by its members.

123 In that regard, it must be recalled that, in the context of the first and second verification procedures, the bailiff had to verify compliance with the condition laid down in Article 2(2)(e) of the Agreement, under which, in order to be counted under those procedures, the members of the cosignatory OSPs must pay monthly contributions amounting to at least 0.2% of their basic salary or pension.

124 However, since the cosignatory OSPs are not aware, in real time, of the changes in the remuneration of their members, based on their status under the Staff Regulations or their personal status, it is possible that, as at the reference date chosen to conduct the verification procedure, some of their members cannot be counted for the purpose of verifying the recognition or representativeness threshold because, given the changes in their remuneration, the level of their monthly contributions has fallen below the percentage stated in paragraph 123 above.

125 However, the applicant does not produce any evidence intended to establish that, as at 31 July 2022 or the second reference date, it would have been able to reach the representativeness threshold, even though the second verification procedure gave it additional time and a further opportunity to adjust the level of its members’ contributions and increase its number of members, based on the new reference date set as 28 February 2023.

126 The Council did not therefore fail to comply with its duty to act diligently by adopting 31 May 2022 as the first reference date.

(iii) The third argument, alleging breach of the obligation of impartiality

127 The applicant complains of a breach of the obligation of impartiality without, however, providing sufficient clarifications for its line of argument so as to enable the merits of that argument to be assessed.

128 In that regard, it must be recalled that Article 76d of the Rules of Procedure of the General Court provides that an application made at first instance must contain ‘the pleas in law and arguments relied on and a summary of those pleas in law’. Thus, according to settled case-law, the Courts of the European Union are not required to respond to the arguments of a party which are not sufficiently clear and precise, in that they have not been expanded upon or accompanied by a specific line of argument intended to support them (see judgment of 18 November 2021, Greece v Commission, C‑107/20 P, not published, EU:C:2021:937, paragraph 76 and the case-law cited).

129 This third argument must therefore be dismissed as inadmissible, and therefore the first complaint of the first part must be dismissed in its entirety.

(2) The second complaint, based on the Council’s failure to take account of the difficulties experienced by the applicant in accessing the correct information to enable it to satisfy the requirements of the first and second verification procedures

130 The applicant submits that the Council did not take account of the difficulties experienced by the applicant in accessing the correct information to enable it to satisfy the requirements of the first and second verification procedures, namely the levels of remuneration of the officials, servants and pension recipients which are linked to their grades.

131 Thus, the applicant considers that the Council should have provided it, in the course of the first and second verification procedures, if necessary in an anonymised form, with information relating to the grades of the officials, servants and pension recipients, so that it might verify the contribution rate by reference to the basic salary.

132 In that regard, it must be recalled that the third indent of Article 5(2) of the Agreement required the cosignatory OSPs, for verification purposes, to provide the bailiff with lists of their members employed by the GSC, specifying their nationality, duties and function group, and a list of the former officials and other servants of the GSC entitled to a Community pension.

133 In addition, the first and second mission letters required the bailiff, in order to undertake the first and second verification procedures, to contact the ‘Organisational Development and Services’ Directorate-General to obtain the official lists of officials and other servants and the official lists of former officials and other servants drawn up respectively on the first reference date of 31 May 2022 and on the second reference date of 28 February 2023 (‘the official lists drawn up by the Council’).

134 In particular, the official lists drawn by the Council included information relating to the grades and remuneration of the members and former members of the GSC’s staff so as to enable the bailiff to verify compliance with the condition laid down in Article 2(2)(e) of the Agreement, under which, in order to be counted in the context of verification procedures, the members of the cosignatory OSPs must pay monthly contributions amounting to at least 0.2% of their basic salary or pension.

135 However, first, it must be observed that no provision of the Agreement requires the communication to the cosignatory OSPs of the information contained in the official lists drawn by the Council.

136 Second, it is not apparent from the file that the applicant asked the Council to send to it, for the purpose of the first and second verification procedures, the official lists drawn up by the Council.

137 Third, the Council could not grant a request from the applicant for the communication of the official lists drawn up by the Council without breaching the confidentiality clause contained in Article 5(1) of the Agreement.

138 That clause, which prohibited the bailiff from divulging information obtained as part of the verification procedures, makes it possible to guarantee not only the secrecy of the trade union membership of officials and other servants of the GSC as well as its former officials and other servants, but also the confidentiality of their remuneration, in accordance with the provisions of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39).

139 Fourth, while the applicant claims that the official lists drawn up by the Council could have been communicated to it in an anonymised form, it is not certain that, in such circumstances, the applicant would have been unable to identify the current and former members of staff of the GSC included on those lists, or at the very least some of them, by virtue of the data relating to their grades and remuneration.

140 This complaint must therefore be dismissed as unfounded.

(3) The third complaint, based on the publication by the Council, on 30 November 2022, of the outcome of the first verification procedure

141 The applicant alleges that the Council failed to have regard to the principle of good administration by publishing, on 30 November 2022, on its intranet, the outcome of the first verification procedure, without consulting the applicant or the other two cosignatory OSPs concerned and prematurely, with the result that the applicant did not have the opportunity to submit observations or, potentially, to contest that procedure.

142 In addition, the applicant considers that that publication encouraged another cosignatory OSP to undertake a smear campaign in its regard by making the first report public on 23 January 2023, thus making it even more difficult to motivate its members once more with a view to rectifying its situation.

In that regard, it must be noted that, on 30 November 2022, the Council did publish on its intranet a short article about the Agreement, the conditions for the recognition and representativeness of the cosignatory OSPs and the first verification procedure. It was thus stated in that article that the bailiff had recently issued his report and established that two cosignatory OSPs, which were named, had reached the recognition and representativeness thresholds, whereas the applicant had not. The article also stated that, in accordance with the Agreement, the applicant had three months to meet those thresholds and to continue to enjoy the rights provided for under the Agreement.

144In the first place, while the applicant claims that that information was published without the prior consultation of the OSPs concerned and without informing those OSPs, it neither establishes nor even alleges that the Council was obliged to undertake such consultation and information processes beforehand. In any event, the applicant does not state how such circumstances equate to a breach of the principle of good administration.

145In the second place, it must be observed that, while the applicant submits that the publication by the Council on its intranet on 30 November 2022 encouraged another cosignatory OSP to undertake a smear campaign in the applicant’s regard by making the contents of the first report public on 23 January 2023, which the applicant claims made it more difficult to motivate its members once more looking ahead to the second verification procedure, the applicant provides no evidence to establish the veracity of that allegation, since the brochure dated 23 January 2023 which it produces does not prove the existence of a smear campaign in its regard.

146This complaint must therefore be dismissed as unfounded, as must the second part in its entirety.

The third part, alleging breach of the ‘spirit of sincere cooperation’, viewed in the light of the principle of proportionality

147The applicant submits that the Council acted in breach of the ‘spirit of sincere cooperation’, viewed in the light of the principle of proportionality, because the Council should have given it the benefit of the 18-month transitional period provided for in paragraph 4 of the Annex, to allow it to manage the transition between the situation resulting from its status as a recognised and representative OSP to that arising from its new status simply as a recognised OSP.

148In that regard, in the first place, it must be recalled that, under the first paragraph of Article 4(3) TEU, pursuant to the principle of sincere cooperation, the Union and its Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties.

149Thus, that provision does not impose on the Council a duty of sincere cooperation in its relations with a legal person such as the applicant.

150In addition, the applicant has not relied on any other provision of EU law which would impose on an institution, in its relations with the OSPs, a duty of ‘sincere cooperation’.

151In particular, it must be observed that the Agreement does not provide for a duty of sincere cooperation on the part of the Council and the cosignatory OSPs.

152Accordingly, the applicant cannot effectively rely on the principle of sincere cooperation and this part, in so far as it is based on the breach of that principle, must be dismissed as ineffective.

153In the second place, as regards the principle of proportionality, it must be recalled that, under Article 52(1) of the Charter, ‘any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. In addition, Article 5(4) TEU provides that, under the principle of proportionality, the content and the form of Union action is not to exceed what is necessary to achieve the objectives of the Treaties.

154In that regard, it must be observed that paragraph 4 of the Annex provides that, should the distribution of secondments among representative OSPs be modified, seconded staff are to be able to remain in their post for a transitional period of 18 months.

155Thus, it is clear from the wording of that provision that it applies to representative OSPs only, a status which the applicant can no longer claim by virtue of the adoption of the contested decision.

156Accordingly, the Council could not grant the applicant the benefit of the 18-month transitional period provided for in paragraph 4 of the Annex without, in so doing, infringing that provision and thus disregarding both the legal framework which it itself established and the principle of legal certainty.

157In those circumstances, the applicant is unjustified in claiming that the Council’s refusal to grant it the benefit of the transitional period provided for in paragraph 4 of the Annex constitutes a breach of the principle of proportionality.

158This part must therefore be dismissed as must, consequently, the second plea in law in its entirety.

The third plea in law, alleging violation of the fundamental right to freedom of association

159The applicant claims that the contested decision constitutes a breach of the freedom of association as guaranteed in Article 12(1) of the Charter, as well as Articles 27 and 28 thereof, and in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). In its view, the contested decision entails an obstacle to its members’ exercise of the freedom of association since it has the immediate effect of terminating its president’s secondment and the provision of a secretarial assistant and of leaving it with an email address as its only resource.

160The applicant also claims that, since its president must now find a new full-time post within the GSC, she will no longer be as available as before to carry out her trade union duties in service of the applicant’s members, with the result that the applicant is sentenced to a decline in interest on the part of its current or potential members and a ‘slow death’.

161The Council disputes the applicant’s claims.

162In this regard, it must be recalled that, although, as Article 6(3) TEU confirms, the fundamental rights enshrined in the ECHR constitute general principles of EU law and even though Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to the rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by that convention, the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 24 and the case-law cited).

163However, it is apparent from the Explanations relating to the Charter (OJ 2007 C 303, p. 17) that the right guaranteed in Article 12(1) of the Charter corresponds to the right guaranteed in Article 11 ECHR and that, pursuant to Article 52(3) of the Charter, the former has the same meaning and the same scope as the latter (judgment of 19 October 2023, Aquino v Parliament, C‑534/22 P, not published, EU:C:2023:802, paragraph 30).

164This plea in law must therefore be examined in the light of Article 12(1) of the Charter.

165Accordingly, it must be recalled that, according to Article 12(1) of the Charter, ‘everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests’.

166In addition, Articles 27 and 28 of the Charter provide that ‘workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the case and under the conditions provided for by [Union] law and national laws and practices’ and that ‘workers and employers, or their respective organisations, have, in accordance with [Union] law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action’.

167Finally, it must be recalled that, under Article 24b of the Staff Regulations, ‘officials shall be entitled to exercise the right of association; they may in particular be members of trade unions or staff associations of European officials’.

168In that context, it follows from case-law that the Union institutions must refrain from doing anything which might impede the freedom of trade union activity recognised in the provisions referred to in paragraphs 165 to 167 above (see, to that effect, judgment of 18 January 1990, Maurissen and Union syndicale v Court of Auditors, C‑193/87 and C‑194/87, EU:C:1990:18, paragraph 12).

169The freedom of trade union activity thus afforded to officials and servants of the European Union means that OSPs are free to do anything lawful to protect the interests of their members as employees (see, to that effect, judgment of 18 January 1990, Maurissen and Union syndicale v Court of Auditors, C‑193/87 and C‑194/87, EU:C:1990:18, paragraph 13 and the case-law cited).

170It thus follows, first, that Union institutions must allow OSPs to perform their missions of representation and consultation on all matters affecting staff and, second, that they may not impose any penalty whatsoever on officials or servants by reason of their trade union activities (see, to that effect, judgment of 18 January 1990, Maurissen and Union syndicale v Court of Auditors, C‑193/87 and C‑194/87, EU:C:1990:18, paragraphs 14 and 15).

171In the present case, it must be observed that, in accordance with the contested decision, the applicant continues to benefit from the resources provided for in Article 13 of the Agreement as a recognised OSP for the purpose of exercising its trade union activities such that, although it does not have the same rights or the same resources as those enjoyed by a representative OSP, it nevertheless retains the power to carry out its missions of representation and consultation on all matters affecting staff.

172In addition, the contested decision by no means precludes the applicant from regaining its status as a representative OSP if it were to reach once more the representativeness threshold provided for in the Agreement.

173Furthermore, the contested decision does not create any barrier to the freedom of peaceful assembly or the freedom of association of the applicant’s members, with a view to protecting their interests, or to their right to be informed and consulted in good time, in particular in the context of the Staff Committee specifically established by the Staff Regulations.

174In that regard, it must be recalled that, under Article 9(3) of the Staff Regulations, the Staff Committee is to represent the interests of all staff vis-à-vis their institution and maintain continuous contact between the institution and its staff, whilst contributing to the smooth running of the service by providing a channel for the expression of opinion by staff (see, to that effect, judgment of 19 October 2023, Aquino v Parliament, C‑534/22 P, not published, EU:C:2023:802, paragraph 32).

175Finally, the contested decision in no way precludes other representative OSPs within the Council from protecting the interests of the applicant’s members in the context of the negotiation and conclusion of agreements such as those governed by Article 10c of the Staff Regulations, nor prevents the applicant’s members from taking collective action to defend their interests, including strike action.

176In those circumstances, the contested decision, which was not adopted on account of trade union activities undertaken by the applicant but is rather, in accordance with the Agreement, justified by the bailiff’s findings that the applicant did not reach the representativeness threshold laid down in that Agreement as at the first or the second reference date, cannot be regarded as imposing penalties on or impeding its members freedom of trade union activity and the rights which they derive from Article 12(1) of the Charter as well as from Articles 27 and 28 thereof.

177In that regard, it must be held that the applicant has not claimed, nor a fortiori established, that the provisions of the Agreement governing the provision of resources to the OSPs in order to facilitate their trade union activities, whether in the case of representative OSPs or recognised OSPs, constitute a limitation on the exercise of the rights guaranteed by Articles 12, 27 and 28 of the Charter and by Article 24b of the Staff Regulations.

178Accordingly, the third plea in law must be dismissed as unfounded and the claim for annulment dismissed in its entirety.

The claim for compensation

179The applicant claims that the publication of the outcome of the first verification procedure on 30 November 2002, without consulting it or the other two cosignatory OSPs concerned and prematurely, constitutes a sufficiently serious breach of the principle of good administration in its regard, which caused it non-material harm arising from the damage to its reputation. It asks that the Council be ordered to pay token damages of EUR 1 in that regard.

180The Council disputes the applicant’s claims.

181In this regard, it must be recalled that, according to settled case-law, the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission, C‑549/21 P, not published, EU:C:2023:340, paragraph 113 and the case-law cited).

In the present case, the applicant relies solely, in support of the present claim for compensation, on the same unlawfulness set out in support of its claim for annulment, in particular, the third complaint of the second part of the second plea in law, alleging breach of the principle of good administration on account of the publication, on 30 November 2022, of the outcome of the first verification procedure.

183However, it follows from paragraph 146 above that the third complaint of the second part of the second plea in law, raised in support of the claim for annulment, has been dismissed as unfounded.

184Accordingly, the first condition referred to in paragraph 181 above for the European Union to incur non-contractual liability, namely the existence of a breach of a rule of law intended to confer rights on individuals, is not met.

185The claim for compensation must therefore be dismissed, without it being necessary to consider the other conditions for the Union institutions to incur liability.

186Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those relating to the proceedings for interim measures, as applied for by the Council.

On those grounds,

hereby:

Papasavvas

Truchot

Kanninen

Sampol Pucurull

Tóth

Delivered in open court in Luxembourg on 11 December 2024.

[Signatures]

*

Language of the case: French.