1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 17 MAY 1985, CLAUS DIEZLER AND FOUR OTHER OFFICIALS OF THE ECONOMIC AND SOCIAL COMMITTEE ( HEREINAFTER REFERRED TO AS "THE ESC ") BROUGHT AN ACTION FOR THE ANNULMENT OF :
( A ) THE RULES OR OTHER TEXT ADOPTED BY THE GENERAL MEETING OF THE STAFF OF THE ESC ON 19 APRIL 1985 REGARDING THE VOTING SYSTEM FOR THE STAFF COMMITTEE,
( B ) ALL SUBSEQUENT STEPS TAKEN PURSUANT TO THAT TEXT, IN PARTICULAR THE ELECTIONS OF THE STAFF COMMITTEE SCHEDULED FOR 10 JUNE 1985, TOGETHER WITH ALL THE APPOINTMENTS BY THE STAFF COMMITTEE TO VARIOUS BODIES, AND
( C ) IN SO FAR AS IS NECESSARY, THE REJECTION ON 24 APRIL 1985 OF THE COMPLAINT BY THE FOURTH APPLICANT, H . MUELLERS .
2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 23 DECEMBER 1985, THE SAME APPLICANTS BROUGHT A FURTHER ACTION, SEEKING ( A ) THE ANNULMENT OF THE DECISION ON NEW VOTING RULES, ADOPTED BY THE STAFF MEETING OF THE ESC ON 19 APRIL 1985 AND SUBSEQUENT STEPS TAKEN PURSUANT THERETO, AND THE REJECTION BY THE ESC OF THEIR COMPLAINT LODGED ON 18 JULY 1985, AND ( B ) A DECLARATION THAT THE ESC MUST TAKE EVERY APPROPRIATE STEP TO PREVENT THE MEASURES CHALLENGED BY THE APPLICATION FROM HAVING ANY EFFECT WHATSOEVER .
3 BY AN ORDER OF 26 SEPTEMBER 1985, THE COURT GRANTED F . GRILLENZONI AND FOUR OTHER OFFICIALS OF THE ESC LEAVE TO INTERVENE IN CASE 146/85 IN SUPPORT OF THE ESC' S CONCLUSIONS, AND BY AN ORDER OF 25 JUNE 1986 IT ALSO GAVE THE SAME OFFICIALS LEAVE TO INTERVENE IN CASE 431/85 IN SUPPORT OF THE ESC' S CONCLUSIONS .
4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE BACKGROUND TO THE DISPUTE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
ADMISSIBILITY OF THE APPLICATION IN CASE 146/85
NATURE OF THE CONTESTED MEASURES
5 AS THE COURT HAS HELD IN ITS JUDGMENT OF 29 SEPTEMBER 1976 IN CASE 54/75 DE DAPPER V PARLIAMENT (( 1976 )) ECR 1381, THE COURT HAS JURISDICTION IN ELECTORAL DISPUTES CONCERNING THE APPOINTMENT OF STAFF COMMITTEES ON THE BASIS OF THE PROVISIONS RELATING TO APPLICATIONS BY OFFICIALS WHICH ARE LAID DOWN BY THE STAFF REGULATIONS PURSUANT TO ARTICLE 179 OF THE EEC TREATY . THE JUDICIAL REVIEW IS CARRIED OUT IN CONNECTION WITH ACTIONS BROUGHT AGAINST THE INSTITUTION CONCERNED REGARDING THE ACTS OR OMISSIONS OF THE APPOINTING AUTHORITY ARISING OUT OF THE EXERCISE OF ITS SUPERVISORY FUNCTION .
6 ACCORDINGLY, IN THIS CASE, THE APPLICATION IS ADMISSIBLE ONLY IN SO FAR AS IT SEEKS THE ANNULMENT OF THE DECISION OF THE CHAIRMAN OF THE ESC REFUSING TO INTERVENE IN HIS CAPACITY AS APPOINTING AUTHORITY AS MR MUELLERS HAD REQUESTED, AND THE ANNULMENT OF THE DECISION OF THE GENERAL MEETING OF THE STAFF ON 19 APRIL 1985 WHICH ESTABLISHED A VOTING SYSTEM FOR THE ELECTION OF THE STAFF COMMITTEE TO WHICH THE REQUEST REJECTED BY THE CHAIRMAN OF THE ESC IN HIS CAPACITY AS THE APPOINTING AUTHORITY REFERS .
PRIOR COMPLAINT
7 AS THE COURT HELD IN ITS AFORESAID JUDGMENT OF 29 SEPTEMBER 1976, A PRIOR COMPLAINT IS NECESSARY IN ELECTORAL DISPUTES CONCERNING THE APPOINTMENT OF THE STAFF COMMITTEES OF THE COMMUNITY INSTITUTIONS . IT IS UNCONTESTED THAT THE APPLICANTS OTHER THAN MR MUELLERS DID NOT SUBMIT A COMPLAINT TO THE APPOINTING AUTHORITY PRIOR TO BRINGING THIS ACTION . CONSEQUENTLY, THE APPLICATION MUST BE DECLARED INADMISSIBLE AS FAR AS THE APPLICANTS OTHER THAN MR MUELLERS ARE CONCERNED, FOR LACK OF A PRIOR COMPLAINT .
8 AS FAR AS MR MUELLERS IS CONCERNED, HIS LETTER OF 22 APRIL 1985 TO THE CHAIRMAN OF THE ESC CONSTITUTES A COMPLAINT FOR THE PURPOSES OF ARTICLE 90*(2 ) OF THE STAFF REGULATIONS . THE AIM OF THE LETTER WAS TO CAUSE THE APPOINTING AUTHORITY TO MAKE GOOD ITS FAILURE TO CONDEMN THE DECISION ADOPTED BY THE GENERAL MEETING OF THE STAFF ON 19 APRIL 1985 ON A NEW VOTING SYSTEM . FURTHERMORE, ALTHOUGH THE LETTER IS STATED TO BE ADDRESSED TO THE PRESIDENT OF THE ESC "ON BEHALF OF ... THE TRADE UNION" OF WHICH MR MUELLERS WAS CHAIRMAN, IT IS NONE THE LESS APPARENT FROM THE CONTENT OF THE LETTER AS A WHOLE THAT IT WAS ALSO SUBMITTED ON HIS OWN BEHALF . ACCORDINGLY, MR MUELLERS' S APPLICATION MUST BE DECLARED ADMISSIBLE .
LEGAL INTEREST IN BRINGING THE ACTION
9 IT SHOULD BE NOTED IN THIS CONNECTION THAT EVERY PERSON ENTITLED
TO VOTE HAS AN INTEREST IN ENSURING THAT THE REPRESENTATIVES OF HIS ORGANIZATION ARE ELECTED IN CONDITIONS AND ACCORDING TO VOTING ARRANGEMENTS WHICH COMPLY WITH THE PROVISIONS OF THE STAFF REGULATIONS GOVERNING VOTING PROCEDURE IN THIS CONTEXT . MERELY BY VIRTUE OF BEING ENTITLED TO VOTE, THEREFORE, MR MUELLERS HAS A SUFFICIENT INTEREST TO MAKE HIS APPLICATION ADMISSIBLE .
10 ACCORDINGLY, THE APPLICATION IS DECLARED ADMISSIBLE IN SO FAR AS IT IS BROUGHT BY MR MUELLERS BUT IS DISMISSED FOR LACK OF A PRIOR COMPLAINT IN THE CASE OF THE OTHER APPLICANTS .
ADMISSIBILITY OF THE APPLICATION IN CASE 431/85
11 A DISTINCTION SHOULD BE DRAWN HERE BETWEEN MR MUELLERS' S CASE AND THAT OF THE OTHER APPLICANTS .
12 SINCE THE APPLICATION OF THOSE OTHER APPLICANTS IN CASE 146/85 HAS BEEN DECLARED INADMISSIBLE, THEY ARE NOT AFFECTED BY THE LIS PENDENS RULE IN THIS CASE . IT FOLLOWS THAT THE OBJECTION RAISED BY THE ESC AND THE INTERVENERS OF INADMISSIBILITY ON THE GROUNDS OF LIS PENDENS MUST BE REJECTED .
13 ON THE OTHER HAND, SINCE MR MUELLERS' S APPLICATION IN CASE 146/85 HAS BEEN DECLARED ADMISSIBLE, CONSIDERATION SHOULD BE GIVEN TO WHETHER THE OTHER CONDITIONS OF THE LIS PENDENS RULE ARE SATISFIED IN THIS REGARD .
14 IT MUST BE NOTED THAT, IN BOTH HIS APPLICATIONS, MR MUELLERS BASICALLY SEEKS THE ANNULMENT OF THE SAME MEASURES, NAMELY THE DECISION OF THE GENERAL MEETING OF THE STAFF OF 19 APRIL 1985 AND THE MEASURES ADOPTED SUBSEQUENTLY . THE FACT THAT IN HIS CONCLUSIONS HE SEEKS THE ANNULMENT, IN CASE 146/85, OF THE REJECTION OF HIS COMPLAINT OF 22 APRIL 1985 AND, IN CASE 431/85, OF THE REJECTION OF HIS COMPLAINT OF 18 JULY 1985 CANNOT BE HELD SUFFICIENT TO DIFFERENTIATE BETWEEN THE CONCLUSIONS IN THE TWO APPLICATIONS . AN ACTION IS ESSENTIALLY CONCERNED WITH THE ORIGINAL ACT OR OMISSION, AND THE SUBMISSION OF A COMPLAINT IS ONLY ONE OF THE CONDITIONS PLACED ON THE ADMISSIBILITY OF AN ACTION BROUGHT AGAINST THAT ACT OR OMISSION .
15 IT SHOULD FURTHER BE NOTED THAT ALTHOUGH THE APPLICANT IN HIS CONCLUSIONS IN CASE 431/85, IN ADDITION TO REQUESTING THE ANNULMENT OF THE MEASURES IN QUESTION, SEEKS A DECLARATION THAT THE ESC SHOULD TAKE EVERY APPROPRIATE MEASURE TO PREVENT THE RULES ON THE VOTING SYSTEM ADOPTED ON 19 APRIL 1985 AND ALL SUBSEQUENT MEASURES FROM HAVING ANY EFFECT WHATSOEVER, THAT DOES NOT SUFFICE TO DIFFERENTIATE BETWEEN THOSE CONCLUSIONS AND THE CONCLUSIONS IN CASE 146/85 . THE ADDITIONAL CONCLUSIONS OF THE APPLICANT ARE IN FACT NO MORE THAN A REFERENCE TO ARTICLE 176 OF THE EEC TREATY, WHICH REQUIRES AN INSTITUTION WHOSE ACT HAS BEEN DECLARED VOID TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT, WITHOUT ANY SPECIFIC REQUEST BY THE APPLICANT TO THAT EFFECT BEING NECESSARY .
16 ACCORDINGLY, IT MUST BE HELD THAT THE OBJECT OF THE TWO ACTIONS IS THE SAME . MOREOVER, SINCE THE SUBMISSIONS MADE BY THE APPLICANT IN BOTH ACTIONS ARE ESSENTIALLY THE SAME, MR MUELLERS' S APPLICATION IN CASE 431/85 SHOULD BE DECLARED INADMISSIBLE ON THE GROUNDS OF LIS PENDENS .
SUBSTANCE
17 THE APPLICANTS' FIRST SUBMISSION IN BOTH ACTIONS IS BASED ON THE INFRINGEMENT OF ARTICLE 5 OF DECISION NO 1896/75A, ADOPTED ON 28 JULY 1975 BY THE BUREAU OF THE ESC ON THE COMPOSITION AND PROCEDURE OF THE STAFF COMMITTEE . THE FIRST PARAGRAPH OF ARTICLE 5 PROVIDES : "THE MEMBERS OF THE STAFF COMMITTEE SHALL BE ELECTED IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY THE GENERAL MEETING OF OFFICIALS OF THE ESC, WHICH MUST BE HELD NOT LATER THAN ONE MONTH BEFORE THE EXPIRY OF THE TERM OF OFFICE OF THE OUTGOING COMMITTEE ...". THE SECOND PARAGRAPH STATES : "THE TERM OF OFFICE OF THE MEMBERS OF THE STAFF COMMITTEE SHALL EXPIRE TWO YEARS FROM THE DATE OF THEIR ELECTION . ..."
18 IT SHOULD BE NOTED IN THIS CONNECTION THAT, ALTHOUGH THAT PROVISION ESTABLISHING AN INTERVAL OF ONE MONTH IS EXPRESSED TO REFER TO THE EXPIRY OF THE TERM OF OFFICE OF THE OUTGOING COMMITTEE, IT IS IN FACT PRINCIPALLY CONCERNED WITH THE DATE OF ELECTIONS TO THE NEW STAFF COMMITTEE, WHICH, IN PRINCIPLE, ARE HELD AT THE END OF THE TERM OF OFFICE OF THE EXISTING STAFF COMMITTEE .
19 THE PURPOSE OF ARTICLE 5 IS TO ALLOW THE VOTING SYSTEM FOR THE STAFF COMMITTEE TO BE LAID DOWN BY A STAFF MEETING HELD AT LEAST ONE MONTH IN ADVANCE OF THE ELECTIONS, SO AS TO CREATE THE CONDITIONS FOR QUIET REFLECTION AND THEREBY MAKE THE CHOICE OF VOTING SYSTEM AS OBJECTIVE AS POSSIBLE, WITHOUT ANY AIM OF INFLUENCING THE OUTCOME OF THE FORTHCOMING ELECTIONS; ON THE OTHER HAND, THE PROSPECT OF IMMINENT ELECTIONS MAY CAUSE THE CHOICE OF VOTING SYSTEM TO BE INFLUENCED BY ELECTORAL CONSIDERATIONS AND PRECLUDE A CHOICE BASED ON THE MERITS OF EACH VOTING SYSTEM CONSIDERED IN ISOLATION .
20 IT FOLLOWS THAT, FAR FROM SERVING AS A MERE GUIDELINE, THE INTERVAL LAID DOWN BY THE FIRST PARAGRAPH OF ARTICLE 5 OF DECISION NO 1896/75A CONSTITUTES A MANDATORY PROVISION, SO THAT ELECTORAL RULES WHICH ARE ADOPTED BY A GENERAL STAFF MEETING HELD IN CONTRAVENTION OF THAT PROVISION ARE VITIATED BY ILLEGALITY AND MUST BE ANNULLED . THE ILLEGALITY CANNOT BE EXPUNGED BY THE SUBSEQUENT DEFERMENT OF THE DATE SET FOR THE ELECTIONS, IN VIEW OF THE PURPOSE OF THAT INTERVAL AS EXPLAINED ABOVE .
21 IN THE LIGHT OF THE FOREGOING, THE DECISION ADOPTED ON 19 APRIL 1985 BY THE GENERAL MEETING OF THE STAFF ON A NEW VOTING SYSTEM FOR ELECTIONS TO THE STAFF COMMITTEE OF THE ESC MUST BE ANNULLED, WITHOUT THERE BEING ANY NEED TO CONSIDER THE FURTHER ARGUMENTS OF THE APPLICANTS .
22 THE GENERAL MEETING OF 19 APRIL 1985 HAD ALSO APPOINTED AN ELECTION BOARD FOR THE PLANNED ELECTIONS . THAT APPOINTMENT IS A RESOLUTION SEPARATE FROM THE ESTABLISHMENT OF RULES ON THE VOTING SYSTEM AND IS NOT THE SUBJECT OF THIS DISPUTE .
COSTS
23 UNDER ARTICLE 69*(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY' S PLEADING . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, IN PROCEEDINGS UNDER ARTICLE 95*(3 ) INSTITUTIONS MUST BEAR THEIR OWN COSTS . THE APPLICANTS AND THE ESC HAVE EACH BEEN UNSUCCESSFUL IN ONE OF THE APPLICATIONS IN CASES 146 AND 431/85 . IT IS APPROPRIATE TO ORDER THE ESC TO PAY THE COSTS OF THE APPLICANT MR MUELLERS IN CASE 146/85 AND THE COSTS OF THE OTHER APPLICANTS, MR DIEZLER, MR DEASY, MR FINK-JENSEN AND MR RICCI, IN CASE 431/85 .
ON THOSE GROUNDS,
THE COURT ( FOURTH CHAMBER )
HEREBY :
( 1 ) DISMISSES AS INADMISSIBLE THE APPLICATIONS OF THE APPLICANTS OTHER THAN MR MUELLERS IN CASE 146/85;
( 2 ) DISMISSES AS INADMISSIBLE THE APPLICATION OF MR MUELLERS IN CASE 431/85;
( 3 ) ANNULS THE DECISION OF THE GENERAL MEETING OF THE STAFF OF THE ECONOMIC AND SOCIAL COMMITTEE OF 19 APRIL 1985 ON A VOTING SYSTEM FOR THE ELECTION OF ITS STAFF COMMITTEE, TOGETHER WITH THE DECISIONS OF THE CHAIRMAN OF THE ECONOMIC AND SOCIAL COMMITTEE REJECTING THE COMPLAINT MADE BY MR MUELLERS ON 22 APRIL 1985 AND BY THE OTHER APPLICANTS ON 18 JULY 1985;
( 4 ) ORDERS THE ECONOMIC AND SOCIAL COMMITTEE TO PAY THE COSTS OF MR MUELLERS IN CASE 146/85 AND THOSE OF MR DIEZLER, MR DEASY, MR FINK-JENSEN AND MR RICCI IN CASE 431/85;
( 5 ) FOR THE REST, ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
