In Case T-381/94,
Sindacato Pensionati Italiani,
Federazione Nazionale Pensionati,
Unione Italiana Lavoratori Pensionati,
associations governed by Italian law, represented by Massimo Severo Giannini and Massimo d' Antona, of the Rome Bar, and Mario Chiti, of the Florence Bar, with an address for service in Luxembourg at the Chambers of Loesch & Wolter, 11 Rue Goethe,
applicants,
v
Council of the European Union, represented by Giorgio Maganza and Antonio Tanca, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Bruno Eynard, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,
defendant,
APPLICATION for the annulment of Council Decision 94/660/EC, Euratom of 26 September 1994 appointing the members of the Economic and Social Committee for the period from 21 September 1994 to 20 September 1998 (OJ 1994 L 257, p. 20) insofar as it appoints Filippo de Jorio,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of: B. Vesterdorf, President, D.P.M. Barrington, and A. Saggio, Judges,
Registrar: H. Jung,
makes the following
Order
Legal framework
1 Article 193 of the EC Treaty establishes an Economic and Social Committee of the European Communities ("ESC"), having advisory status, and provides that it is to consist of representatives of the various categories of economic and social activity, in particular, representatives of producers, farmers, carriers, workers, dealers, craftsmen, professional occupations and representatives of the general public.
2 The first paragraph of Article 194 of the EC Treaty allocates the seats in the ESC among the Member States. According to the second paragraph of Article 194, the members of the ESC are to be appointed by the Council, acting unanimously, for four years. Their appointments are to be renewable. The third paragraph of Article 194 provides that the members of the ESC may not be bound by any mandatory instructions and are to be completely independent in the performance of their duties, in the general interest of the Community.
3 Article 195 of the EC Treaty is worded as follows:
"1. For the appointment of the members of the Committee, each Member State shall provide the Council with a list containing twice as many candidates as there are seats allotted to its nationals.
The composition of the Committee shall take account of the need to ensure adequate representation of the various categories of economic and social activity.
2. The Council shall consult the Commission. It may obtain the opinion of European bodies which are representative of the various economic and social sectors to which the activities of the Community are of concern."
Facts and procedure
4 It is common ground that on 19 September 1994, in view of the forthcoming appointment of the members of the ESC for the period from 21 September 1994 to 20 September 1998, Italy sent to the Council pursuant to the first paragraph of Article 195 of the Treaty, a list with twice as many candidates as there were seats allotted to it, half being put forward as principal candidates, the other half as alternative candidates. On 26 September 1994 the Council, having consulted the Commission according to an emergency procedure, adopted under the "Point A" procedure Council Decision 94/660/EC, Euratom appointing the members of the ESC for the period from 21 September 1994 to 20 September 1998 (OJ 1994 L 257, p. 20).
5 Filippo de Jorio, of the Alleanza dei Pensionati, was among those appointed.
6 It was in those circumstances that, by an application lodged at the Court Registry on 30 November 1994, the applicants, three associations each representing the interests of Italian pensioners, brought this action.
7 By a document lodged at the Court Registry on 10 February 1995, the Council raised an objection of inadmissibility. The applicants lodged their observations on that objection on 16 March 1995.
8 By a document lodged at the Court Registry on 4 April 1995, Mr de Jorio applied for leave to intervene in support of the form of order sought by the Council.
Forms of order sought by the parties
9 The applicants claim that the Court should:
° declare void, pursuant to Articles 173 and 174 of the EC Treaty, Decision 94/660/EC, Euratom of 26 September 1994, insofar as it appoints Filippo de Jorio, representative of the Alleanza dei Pensionati;
° order the Council to pay the costs.
10 The Council contends that the Court should:
° dismiss the application as inadmissible;
° order the applicants to pay the costs.
Admissibility
Summary of the arguments of the parties
11 The defendant argues that the disputed decision is not of individual concern to the applicant associations within the meaning of the fourth paragraph of Article 173 of the Treaty.
12 It points out, first of all, that, according to the actual wording of Articles 193 and 194 of the Treaty, the members of the ESC are appointed individually and completely independently as representatives of categories of economic and social activity and not as representatives of the associations to which they belong. It considers that a decision appointing a member of the ESC cannot therefore be of individual concern to an association.
13 It further observes that, first, the associations in question played no part in the appointment of members of the ESC and, secondly, that it is settled case-law that an association, in its capacity as representative of a category of persons, cannot be concerned by an act affecting the general interests of that category.
14 The applicants point out, in reply, that the appointment of the members of the ESC is of constitutional importance for the Community. Accordingly, they consider that it is a matter of general interest that the members of the ESC be appointed in compliance with the conditions laid down in the Treaty.
15 Secondly, they state that the fact that the category of pensioners is not expressly provided for by Article 193 of the Treaty, but falls, rather, under the "general public", does not exempt the Council from the obligation of ensuring adequate representation of pensioners. In particular, where the Council appoints a member to look after the interests of pensioners, it is essential to ensure that he is capable of representing them adequately. They point out that their application does not seek to have one of their representatives included in the composition of the ESC but to exclude a member who is not in the least representative. The purpose of their application is to protect the interests of pensioners, whom they lawfully represent, and not their own interests. In that context, the applicant associations emphasize that between them they represent the interests of more than four and a half million Italian pensioners.
16 They consider that, in the judgment in Case 297/86 CIDA and Others v Council [1988] ECR 3531, the Court did not rule that organizations representative of categories may never bring proceedings to challenge decisions appointing members of the ESC, but simply pointed out that the position of the association in question in that case, which represented at national level merely one of the constituent elements of the category of "workers" and not the whole of that category, was not such as to require the Council to take account of it in adopting its decision. In order to distinguish the CIDA case from the present proceedings they emphasize that, in the earlier instance, the ESC had another member representing the same category. In this instance, Mr de Jorio is the only person appointed by all the Member States to represent the interests of pensioners.
17 The applicants also observe that the Community is governed by the rule of law and that the widest possible participation of natural and legal persons in procedures of judicial review is one of the conditions necessary to safeguard the democratic nature of a legal system. They recall that the object of actions for annulment is to ensure that the law is observed and that it would be inconsistent with that object to interpret restrictively the conditions under which actions are admissible (Case 60/81 IBM v Commission [1981] ECR 2639).
18 Moreover, the applicants point out that the legal remedy sought is the only one available to Italian pensioners in order to challenge the compatibility of Mr de Jorio' s appointment with the Treaty. If the present application were declared inadmissible, the Council might avoid any judicial review of that appointment. They emphasize, in that context, that, under Italian law, they would not be entitled to challenge the list of candidates submitted by the Italian Government because the list is merely a preparatory act.
19 The applicants draw attention to the judgment of the Court of Justice in Case 294/83 Les Verts v Parliament [1986] ECR 1339, from which it may be inferred, in their view, that the conditions referred to in the fourth paragraph of Article 173 of the Treaty must be interpreted broadly whenever an action brought by an interested third party seeks to ensure the proper functioning of a body which forms part of the Community institutional structure.
Findings of the Court
20 Article 111 of the Rules of Procedure provides that, where an action is manifestly inadmissible, the Court of First Instance may give a decision on the action by reasoned order, without taking further steps in the proceedings. In this case, the Court considers that the documents before it are sufficient to elucidate this matter and that there is no need to take further steps in the proceedings.
21 The Court finds that the applicants are not the persons to whom the disputed decision is addressed and that, consequently, they can bring an action for the annulment of that decision under the fourth paragraph of Article 173 of the Treaty only if it is of direct and individual concern to them.
22 It is settled case-law that persons other than those to whom a decision is addressed may only claim to be individually concerned within the meaning of Article 173 of the Treaty if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see, most recently, the judgment of the Court of First Instance in Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and Others v Commission [1995] ECR II-1971).
23 It is apparent from Articles 193 and 194 of the Treaty that the members of the ESC are appointed as representatives of the various categories of economic and social activity and not to represent the interests of associations to which they may belong. The third paragraph of Article 194 makes it plain that the members of the ESC may not be bound by any mandatory instructions and are completely independent in the performance of their duties in the general interest of the Community.
24 It follows that the applicant associations are not affected by the disputed decision by reason of attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and they therefore cannot be considered to be individually concerned by the disputed decision.
25 Nor may the applicants rely upon the fact that they represent a large number of Italian pensioners in order to assert that their action is admissible since it is settled case-law that the defence of common interests is not enough to establish the admissibility of an action for annulment brought by an association (AITEC and Others v Commission, cited above).
26 In any event, the Court of Justice has held, in the specific context of the appointment of members of the ESC, that the position of an association which, at national level, represents merely one of the constituent elements of one of the categories referred to in Article 193 of the Treaty and not the whole of that category, is not such as to require the Council to take account of it in adopting its decision and cannot therefore be considered to be individually concerned within the meaning of the fourth paragraph of Article 173 of the Treaty (CIDA and Others v Council, paragraph 11).
27 The Court finds that although the applicant associations represent the interests of a large number of Italian pensioners, they cannot claim that they represent, in Italy, the whole of the "general public" category referred to in Article 193 of the Treaty. Therefore, pursuant to the principle laid down by the Court of Justice in CIDA v Council, for that reason too, they cannot be considered to be individually concerned within the meaning of Article 173 of the Treaty.
28 Consequently, the present application must be dismissed as manifestly inadmissible.
The application to intervene
29 In the circumstances, it is not necessary for the Court of First Instance to give a decision on the application to intervene made by Mr de Jorio.
Costs
30 Under Article 87(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. Since the applicants have been unsuccessful they must be ordered to pay their own costs, including those relating to their observations on the application to intervene, as well as the costs incurred by the Council.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicants shall bear their own costs and those of the defendant.
Luxembourg, 29 September 1995.
