Philippe Colart and Others v European Parliament (F-31/14)

Contents

Judgment of the European Union Civil Service Tribunal (Second Chamber)11 December 2014^note(Civil service — Staff representation — Staff Committee — Staff Committee elections — Rules on staff representation at the European Parliament — Competence of the Committee of Tellers — Complaints procedure before the Committee of Tellers — Publication of the election results — Complaint brought before the Committee of Tellers — Article 90(2) of the Staff Regulations — No prior complaint before the appointing authority — Matter referred directly to the Tribunal — Inadmissibility)In Case F‑31/14,ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,Philippe Colart, an official of the European Parliament, residing in Bastogne (Belgium), and the other applicants whose names appear in the annex to this judgment, represented by A. Salerno, lawyer,vEuropean Parliament, represented by O. Caisou-Rousseau and S. Alves, acting as Agents,THE CIVIL SERVICE TRIBUNAL (Second Chamber),composed of M. I. Rofes i Pujol, President, K. Bradley and J. Svenningsen (Rapporteur), Judges,Registrar: X. Lopez Bancalari, Administrator,having regard to the written procedure and further to the hearing on 30 September 2014,gives the following

Judgment

1By application received at the Tribunal Registry on 29 March 2014, Mr Colart and the other applicants whose names appear in the Annex seek annulment of the results of elections to the Staff Committee of the European Parliament, as published and communicated by the Committee of Tellers on 28 November 2013, and confirmed by that committee after its rejection of the applicants’ complaint.

Legal context

The Staff Regulations

2Article 9 of the Staff Regulations of Officials of the European Union, in the version applicable to the proceedings (‘the Staff Regulations’), provides:1.There shall be set up:a) within each institution:— a Staff Committee, which may be organised in sections for the different places of employment;...which shall perform the functions assigned to [it] by these Staff Regulations.2. The composition and procedure of [that body] shall be determined by each institution in accordance with the provisions of Annex II [of the Staff Regulations]...’.

3The second paragraph of Article 1 of Annex II to the Staff Regulations provides:‘The conditions for election to the Staff Committee if it is not organised in local sections, or to the local section, if the Staff Committee is organised in local sections, shall be laid down by the [G]eneral [M]eeting of officials of the institution in service at the relevant place of employment. However, the institution may decide that the conditions for election are to be determined in accordance with the preference of the staff of the institution as expressed in a referendum ...’

Rules governing representation of the staff of the Parliament

4Pursuant to Annex II of the Staff Regulations, on 6 February 2012 the Staff Committee of the Parliament adopted rules governing the representation of staff (the ‘RRS’), which were adopted by a referendum of the staff of that institution on 4 April 2012.

5Rule 8(1) and (2) of the RRS provides:1. The General Meeting [of staff, composed of all the electors of the Staff Committee] shall appoint, on a joint proposal from lists with at least one elected representative on the outgoing Staff Committee, at least one full teller and three substitute tellers, per list, from among the electors.2. Full and substitute tellers shall not be members of the Staff Committee or candidates for election to the Staff Committee. ...’

6Under Rule 20(1) and (2) of the RRS, ‘[t]he Committee of Tellers shall be made up of full tellers’ and ‘shall be responsible for organising and running Staff Committee elections and other elections, referendums and consultation exercises organised in accordance with these Rules’.

7Rule 26 of the RRS provides:1. The elections shall be organised by the Committee of Tellers.2. The Committee of Tellers shall be allowed a period of at least [40] working days within which to organise the elections.3. At the request of the Committee of Tellers the Secretary-General [of the Parliament] may appoint two observers (including one from the Legal Service) to attend meetings of that committee when it is dealing with matters relating to Staff Committee elections.’

8Rule 39 of the RRS provides:1. After the count, the Committee of Tellers shall draw up and publish a list of elected representatives.2. The non-elected candidates of each list shall be entered in the minutes in the order of the number of votes they obtained.3. The Committee of Tellers shall draw up the minutes of the electoral proceedings within [25] working days of publication of the list of elected representatives, after any complaints have been dealt with in accordance with Rule 42 of these Rules.4. It shall forward a copy of those minutes and of that list to the Secretary-General [of the Parliament] and to the oldest elected member and shall publish them on the Intranet site of the Committee of Tellers.’

9Under Rule 41 of the RRS:‘The Committee of Tellers alone shall be competent to deal with any disputes concerning, or any complaints concerning[,] the organisation of elections to the Staff Committee, subject to appeal to the Court of Justice of the European Union. These complaints must reach the Committee of Tellers, in writing, within ten working days of publication of the notification of the decision or act in question. The Committee of Tellers shall respond to these complaints within ten working days of the date they are received.’

10Rule 42 of the RRS provides:‘Complaints concerning electoral proceedings must reach the Committee of Tellers, in writing, within ten working days of publication of the list of elected representatives. The Committee of Tellers shall respond to these complaints within ten working days of the date they are received.’

11Under Rule 45 of the RRS, proposals to revise the RRS are to be submitted either by the Staff Committee, or in a request signed by at least 200 electors. If approved by the General Meeting in accordance with Rule 16, they are to be submitted to the electors in a referendum within 20 working days.

12Rule 47 of the RRS stipulates that ‘[t]hese Rules, submitted on 20 June 2012 to the Secretary-General of the ... Parliament, shall also be forwarded to the President and Bureau of the ... Parliament’.

Background to the dispute

13In 2013, the applicants were members of the trade union organisation ‘Solidarité pour les agents et fonctionnaires européens’ (hereafter ‘SAFE’). With regard more specifically to Mr Colart and Mr Vienne, they were respectively the president and the political secretary of SAFE.

14Following an extraordinary general meeting of the members of SAFE, held on 21 June 2013, an internal dispute became apparent as to the composition of its executive committee. Nine members of SAFE, led by Mr Colart (hereafter ‘Colart and Others’) claimed to be the legitimate representatives of the organisation, but so also did another group of members, led by Mr Ciuffreda. There was a dispute between these two groups of SAFE members concerning access to the e-mail account provided to SAFE by the Parliament, which led to proceedings before the Courts of the European Union (see the order in Colart and Others v Parliament, F‑87/13, EU:F:2014:53), as well as the Luxembourg courts.

15With regard to the elections to the Staff Committee of the European Parliament, which were to be held in autumn 2013, Colart and Others ultimately decided not to run under the ‘SAFE’ banner, so long as the dispute between them and the other group of SAFE members, finally led by Mr Guccione (‘Guccione and Others’), remained unresolved. Accordingly, on 20 September 2013, Colart and Others submitted a list entitled ‘SAFETY’ (the ‘SAFETY list’) to the Committee of Tellers in relation to those elections, while putting the Committee of Tellers on notice, by means of an e-mail of the same date to its President, of the consequences of any use, which according to them would be irregular and fraudulent, of the name ‘SAFE’, by the list of candidates led by Mr Guccione (the ‘SAFE list’). According to the applicants, Colart and Others adopted a ‘prudent and reasonable attitude, designed essentially to avoid “polluting” the democratic electoral process by confronting the Committee of Tellers with two concurrently lodged lists, each using [and claiming to be entitled to use] the name “SAFE”, with the risk of the electoral schedule being disrupted by a series of subsequent legal actions.’

16After the Committee of Tellers had published the lists of candidates for election to the Staff Committee, which was done on 25 September 2013, Colart and Others sent an e-mail to Guccione and Others, who had presented themselves for election on the SAFE list, informing them that they owned the logo ‘SAFE’, which had been registered at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), and accordingly that, if Guccione and Others were to use that logo, Colart and Others would bring proceedings against them to recover the damages associated with such illegitimate use.

17On 10 October 2013, the Parliament provided Colart and Others with an e-mail account named ‘SAFETY’.

18A first ballot in the Staff Committee elections took place between 14 and 23 October 2013. A second ballot was held between 18 and 27 November 2013.

19The Committee of Tellers published the results of the Staff Committee elections on 28 November 2013. On 12 December 2013, Mr Colart, as ‘the person responsible for the SAFETY list’, submitted to the Committee of Tellers a ‘complaint pursuant to Rule 42 of the RRS, concerning the results of the elections ...’. A copy of this complaint was sent to the President and Secretary-General of the Parliament, among others. In it Mr Colart, writing on behalf of the SAFETY list, objected that the Committee of Tellers had not taken any steps, or responded to his message of 20 September 2013, or even discussed the issue of the use of the name ‘SAFE’ for the purposes of the elections. He also challenged the award of four seats to the SAFE list, led by Mr Guccione, out of the six awarded to officials or other members of staff based in Luxembourg (Luxembourg).

20In the complaint he sent to the Committee of Tellers on behalf of the SAFETY list, Mr Colart’s principal request was for ‘the complete annulment of the elections, on the ground that there was no genuine and credible ballot, and that unfair methods and procedures were used’. While putting in issue the fact that the Committee of Tellers had been chaired by a member (Mr Tilotta) of the Guccione group, which had declared itself to be made up of the legitimate members of the executive committee of SAFE, Mr Colart also made an alternative request on behalf of the SAFETY list, for the ballot papers to be recounted by hand. In this regard Mr Colart relied on irregularities relating to the opening of ballot boxes at the conclusion of the first ballot, and the locking of the supposedly secure voting halls. He also raised doubts as to the credibility of the results in that, of the 29 individuals elected to the Staff Committee, there was no candidate from the Directorate-General for Translation, despite the fact that this represented 20% of the personnel of the Parliament, and only 6 of those elected were based in Luxembourg.

21By letter dated 19 December 2013 (the ‘decision of the Committee of Tellers of 19 December 2013’ or the ‘decision rejecting the complaint to the Committee of Tellers’), the Committee of Tellers responded to the complaint made by Mr Colart, in his capacity as the person responsible for the SAFETY list. The Committee stated that, in the absence of any binding judicial decision relating to the use of the name ‘SAFE’, it had been obliged to accept all the list names proposed by those responsible for the respective lists, particularly given that, in deciding to submit their list under the name ‘SAFETY’, Colart and Others had obviated any risk of confusing electors which might have existed if there had been two concurrent lists with the same name.

22As to the reliability of the voting, the Committee of Tellers informed Mr Colart that the number of blank ballot papers had been systematically checked both upon opening and upon closing of the polling stations (which had been secured by electronic locks) and that no error had been found. The Committee stated that this ruled out any suspicion that — as was claimed to be possible — ballot boxes had been opened and ballot papers already deposited had been replaced.

23As to the request for ballot papers to be recounted, the Committee of Tellers informed Mr Colart that it had unanimously decided not to carry out such a procedure in the absence of any reasonable and convincing argument to justify it in doing so.

24Finally, as to the results of the elections, the Committee of Tellers emphasised that it was not for it to carry out any kind of political analysis, still less to comment on the fact that the elected candidates belonged to one or other of the Directorate-Generals of the Parliament. As to the number of elected representatives whose place of work was Luxembourg, this was in full compliance with the minimum laid down in the RRS.

Forms of order sought

25The applicants claim that the Tribunal should:— annul the results of the elections to the Staff Committee which took place in autumn 2013, those results having been officially published on 28 November 2013;— order the Parliament to pay the costs.

26The Parliament contends that the Tribunal should:— dismiss the action as manifestly inadmissible or, in the alternative, as unfounded;— order the applicants to pay the costs.

27By letter of the Registry of 15 September 2014, the Tribunal put questions to the parties by way of measures of organisation of procedure. The parties duly replied to those questions within the allotted time.

28For their part, the applicants explained that they had not sought to involve the appointing authority after the announcement of the election results, and that it was only for reasons of transparency and courtesy that their complaint to the Committee of Tellers had been copied to certain people who were authorised to act on its behalf. They also confirmed that the decision they sought to annul was that announcing the results given that, in their view, the decision of the Committee of Tellers of 19 December 2013 merely confirmed the results announced on 28 November 2013.

29Furthermore, the applicants stated that, following the decision of the Committee of Tellers of 19 December 2013, they had not made enquiries of the appointing authority as to the possibility of making a complaint under Article 90(2) of the Staff Regulations. This was, first, because such a complaint would be a pointless distraction given that the appointing authority did not have hierarchical power over the Committee of Tellers and thus, in principle, could not alter its decisions. Secondly, according to their reading of Rule 41 of the RRS and on the premise that, in principle, it was not for the appointing authority to interfere in the electoral process relating to the Staff Committee elections, the applicants considered that the Tribunal was competent, pursuant to Rule 41 of the RRS, to assess the legality of decisions of the Committee of Tellers directly.

30The applicants acknowledged that, under the case-law, although the appointing authority has no hierarchical power over the Committee of Tellers, it can — indeed must — intervene and alter its decisions where it transpires that these are unlawful. At the same time, they argued for an ‘evolution of the case-law in the direction of total non-intervention by the appointing authority in the electoral process’.

31The Parliament, for its part, confirmed to the Tribunal that it had not delegated any decision-making power to the Committee of Tellers enabling it to adopt decisions on behalf of the appointing authority. In particular, it submitted that the power to rule on complaints submitted under Article 90(2) of the Staff Regulations is exercisable only by the Bureau, President and Secretary-General of the Parliament.

32While stating that it had not specifically informed its staff that representative bodies cannot, by adopting rules such as the RRS, derogate from a provision of the Staff Regulations such as Article 90(2), the Parliament informed the Tribunal that, after making a complaint to the Committee of Tellers under Rule 41 of the RRS, other candidates who had stood in the Staff Committee elections held in autumn 2013 had, on 28 February 2014, made a complaint to the appointing authority under Article 90(2) of the Staff Regulations, which had been rejected by decision of the appointing authority of 18 June 2014.

33The Parliament argued that, under the case-law, the appointing authority is required to intervene, even on its own initiative, in the event of doubt as to the regularity of Staff Committee elections. In this regard, it also submitted that, in contrast to the position regarding selection boards, whose decisions it has no power to alter, the appointing authority is authorised to intervene in the affairs of the Committee of Tellers, whose members are appointed by the General Meeting of staff, in order to rectify any irregularities.

Law

Arguments of the parties

34Having themselves raised the issue of the admissibility of their action, in the application, the applicants point out that it follows a complaint which was made to the Committee of Tellers, in accordance with Rule 41 of the RRS, on 12 December 2013, and which was rejected by the Committee on 19 December 2013. That being the case, the applicants claim that ‘the present action complies with Article 91 of the Staff Regulations and Article 100(3) of the [Rules of Procedure] and is admissible’. In this regard they maintain, referring to the judgment in Vanhellemont v Commission (T‑396/03, EU:T:2005:406), that the Parliament ‘cannot hide behind the fact that its internal regulations entrust the Committee of Tellers with the task of ruling on complaints concerning the election of members of the Staff Committee, so as to escape its responsibility for supervising the regularity of that election’.

35In response to the Tribunal’s questions, the applicants maintained at the hearing that the appointing authority must have seen a draft of the Committee of Tellers’ reply to their complaint, and had therefore adopted a decision, ‘at some point’ between 12 and 19 December 2013, in favour of what became the decision of the Committee of Tellers of 19 December 2013.

36The Parliament submits that the action is inadmissible, observing that it was brought under Article 270 TFEU and Article 91 of the Staff Regulations. It points out that Article 91(2) of the Staff Regulations expressly provides that ‘[a]n appeal to the Court of Justice of the European Communities shall lie only if ... the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) [of the Staff Regulations] within the period prescribed therein, and the complaint has been rejected by express decision or by implied decision [of the appointing authority]’.

37In this regard, the Parliament submits that the Annex to the decision of the Bureau of the Parliament of 13 January 2014 concerning the delegation of the powers of the appointing authority and the authority empowered to conclude contracts of employment (which is identical in this respect to the previously-applicable decision of the Bureau of the Parliament of 3 May 2004) provides, in point X thereof, entitled ‘Requests and Appeals’, that the appointing authority’s power to determine complaints made against decisions of authorities other than the Bureau, the President or the Secretary-General of the Parliament is delegated to the Secretary-General. Thus, in the present case it is clear that, contrary to case-law, in particular that flowing from paragraph 7 of the judgment in Diezler and Others v ESC (146/85 and 431/85, EU:C:1987:457), the applicants did not make any complaint to the appointing authority. On that basis, and since the conditions of admissibility of an action are a matter of public policy, the action should be held to be inadmissible.

38As to the applicants’ reliance on the fact that they made a complaint to the Committee of Tellers, the Parliament objects that the complaints procedure laid down by the RRS is distinct from that laid down by Article 90(2) of the Staff Regulations. It may be that Title V of the RRS, under the heading ‘Complaints’, makes provision for appeals, known as ‘complaints’, to the Committee of Tellers. However that procedure, which is governed by the RRS, and in relation to which the administration has no power of decision or co-decision, does not provide for the appointing authority to be notified, or enable it to intervene for the purposes of formulating responses to complaints, such as the decision rejecting the complaint which was adopted by the Committee of Tellers in the present case. In any event, the Parliament contends, the Committee of Tellers is not a delegated body capable of determining complaints brought under Article 90(2) of the Staff Regulations on behalf of the appointing authority.

39The Parliament thus observes that in the present case, contrary to the requirements of the case-law, it was not put in a position to understand the complaints or desiderata of the applicants, in its capacity as the appointing authority, until the action was brought. That said, the Parliament acknowledged at the hearing that the drafting of Rules 41 and 42 of the RRS could potentially mislead officials and other members of staff as to the need to make a complaint under Article 90(2) of the Staff Regulations, in electoral matters, before bringing an action under Article 270 TFEU and Article 91 of the Staff Regulations. While maintaining its principal submissions as to the inadmissibility of the action, the Parliament explained at the hearing that, out of a concern for the sovereignty of the General Meeting and the autonomy of the Staff Committee, the joint authors of the RRS, it had not intervened, at that stage, in the text adopted by those two representative bodies.

Findings of the Tribunal

40In assessing the admissibility of the present action, this being challenged by the Parliament, it is appropriate to set out the types of acts which, in electoral matters, are subject to judicial review by the Tribunal, and then the requirements associated with the pre-litigation phase in such matters.

The types of acts which are subject to judicial review in electoral matters

41In the first place, it should be pointed out that the Courts of the European Union have jurisdiction in electoral disputes concerning (amongst other things) Staff Committees, under the general provisions relating to actions brought by officials which are laid down by the Staff Regulations pursuant to Article 270 TFEU. 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 administrative supervisory function in such matters (see judgments in de Dapper and Others v Parliament, 54/75, EU:C:1976:127, paragraphs 8 and 24; Diezler and Others v ESC, EU:C:1987:457, paragraph 5, and Grynberg and Hall v Commission, T‑534/93, EU:T:1994:86, paragraph 20).

42There is settled case-law to the effect that the institutions are under a duty to ensure that their officials have complete freedom to choose their representatives in accordance with the established rules (see, to this effect, judgments in de Dapper and Others v Parliament, EU:C:1976:127, paragraph 22, and Maindiaux and Others v ESC, T‑28/89, EU:T:1990:18, paragraph 32). Accordingly, they are under a duty to prevent or censure manifest irregularities on the part of the bodies responsible for holding elections, such as Staff Committees or, as in this case, Committees of Tellers.

43In this regard, the administration may be under a duty to adopt binding decisions (see, to that effect, judgments in Maindiaux and Others v ESC, EU:T:1990:18, paragraph 32, and Milella and Campanella v Commission, F‑71/05, EU:F:2007:184, paragraph 71). Also, and in any event, it remains under a duty to settle complaints which may be submitted to it in this connection under the procedure laid down by Articles 90 and 91 of the Staff Regulations (judgment in de Dapper and Others v Parliament, EU:C:1976:127, paragraph 23).

44The supervisory function performed by the administration in electoral matters, which gives rise, as set out in paragraph 41 above, to acts or omissions of the appointing authority whose legality may be the subject of judicial review before the Courts of the European Union, is not confined to a right to intervene in situations where the bodies established under the Staff Regulations or administrative bodies in charge of organising elections have already infringed, or are actually threatening to disregard, the electoral rules. On the contrary, the institutions have a right to intervene of their own volition if they have doubts as to the regularity of an election, a right which extends to intervening in order to take preventive measures (judgment in Maindiaux and Others v ESC, EU:T:1990:18, paragraph 32).

45The decisions taken by the appointing authority in the exercise of its supervisory function in electoral matters and capable of giving rise to an action under Article 270 TFEU and Article 91 of the Staff Regulations include those not to review the regularity of decisions adopted by bodies established under the Staff Regulations (see judgment in White v Commission, T‑65/91, EU:T:1994:3, paragraph 91), those requiring a local section of a Staff Committee to act in a particular manner (see judgment in Milella and Campanella v Commission, EU:F:2007:184, paragraphs 62 and 70, and order in Klar and Fernandez Fernandez v Commission, F‑114/13, EU:F:2014:192, paragraph 66, in respect of which an appeal is pending before the General Court, in Case T‑665/14 P), those annulling decisions of bodies responsible for elections, including declarations of the results of elections, those requiring a Committee of Tellers to rectify errors (see judgment in Loukakis and Others v Parliament, F‑82/11, EU:F:2013:139, paragraph 94) or even those dissolving such bodies (see judgment in White v Commission, EU:T:1994:3, paragraph 100). However, the judicial review carried out by the Courts of the European Union does not extend to refusals to act on the part of the appointing authority in cases where it is not competent to take the measures asked of it, for instance in relation to the regularity of decisions of a local Staff Committee regarding the composition of its Bureau (see judgment in Hecq and SFIE v Commission, T‑35/98, EU:T:1999:23, paragraphs 28 to 41) or decisions which are not attributable to the appointing authority, but to the Staff Committee or another body (judgment in Milella and Campanella v Commission, EU:F:2007:184, paragraph 43).

46The Courts of the European Union thus have jurisdiction only in regard to acts of the appointing authority having adverse effect (see, for example, judgment in Venus and Obert v Commission and Council, 783/79 and 786/79, EU:C:1981:245, paragraph 22). More specifically, in electoral disputes concerning the appointment of Staff Committees, it must be recalled that acts adopted by a body (whether established under the Staff Regulations or not) which does not hold powers delegated by the appointing authority, such as a Staff Committee, an electoral office or a Committee of Tellers, are not, in principle and strictly speaking, acts emanating from the appointing authority which may, on that ground, be challenged in an autonomous action before the Courts of the European Union (see judgment in Milella and Campanella v Commission, EU:F:2007:184, paragraphs 42 and 43).

47It is only indirectly, if at all, that the Courts of the European Union, in the context of their judicial review of the acts or omissions of the appointing authority with regard to its obligation to ensure the regularity of elections, may consider, having regard to the consistency of the series of acts which comprise the election and the complex procedure of which they form part, whether the acts adopted by a Committee of Tellers, which are closely linked to the contested decision of the appointing authority, are vitiated by illegality (judgments in Marx Esser and del Amo Martinez v Parliament, T‑182/94, EU:T:1996:130, paragraph 37; Chew v Commission, T‑28/96, EU:T:1997:97, paragraph 20). Any such judicial review is dependent, however, on a decision having been taken by the appointing authority.

Requirements associated with the pre-litigation phase in electoral matters

48In the second place, it should be pointed out that there is settled case-law to the effect that the admissibility of an action brought before the Tribunal under Article 270 TFEU and Article 91 of the Staff Regulations, such as this action, is subject to proper completion of the pre-litigation phase (judgment in Van Neyghem v Committee of the Regions, T‑288/04, EU:T:2007:1, paragraph 53, and order in Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraph 37).

49As regards acts adopted in connection with the duty incumbent on any EU institution to ensure the regularity of elections to bodies representing staff, and of the subsequent composition of those bodies, these are decisions of the relevant institution, in relation to which officials and other members of staff can make a complaint directly to the appointing authority without being required to observe the procedure laid down in Article 90(1) of the Staff Regulations and request the appointing authority, in advance, to take a decision relating to them (in this regard, see judgments in de Dapper and Others v Parliament, EU:C:1976:127, paragraph 23, and Milella and Campanella v Commission, EU:F:2007:184, paragraph 54, and order in Klar and Fernandez Fernandez v Commission, EU:F:2014:192, paragraphs 58 and 59).

50The Courts of the European Union also recognise the possibility of direct action being taken by means of a complaint under Article 90(2) of the Staff Regulations, even where the appointing authority has not yet adopted a decision (express or implied) not to review the regularity of a decision adopted by a body which is responsible for holding elections, provided that the complaint specifies the measures imposed by the Staff Regulations which the appointing authority has allegedly failed to take (judgment in White v Commission, EU:T:1994:3, paragraphs 91 and 92).

51While that is so, the submission of a complaint under Article 90(2) of the Staff Regulations remains, in any event, a necessary precondition of any action under Article 270 TFEU and Article 91 of the Staff Regulations in electoral disputes concerning the appointment of Staff Committees of EU institutions (see judgment in Diezler and Others v ESC, EU:C:1987:457, paragraph 7).

Admissibility of this action

52The Tribunal notes that in this case the appointing authority did not adopt any decision in connection with the duty incumbent on every institution to ensure the regularity of staff elections and of the subsequent composition of bodies representing staff. Equally, the applicants did not submit a direct request to the appointing authority for review of the regularity of the European Parliament Staff Committee elections held in autumn 2013, nor did they submit a complaint to it under Article 90(2) of the Staff Regulations in respect of any decision it was claimed to have adopted, expressly or impliedly, refusing to review the regularity of the way in which the elections were conducted, or that of the decisions taken by the Committee of Tellers, such as the decision to reject the complaint made to that committee, or that of the results as declared by that committee.

53In this regard, contrary to the argument advanced by the applicants at the hearing, the appointing authority cannot be said to have adopted a decision, in the form of a favourable opinion, between 12 and 19 December 2013, simply on the basis that it received a copy of the complaint made to the Committee of Tellers under Rule 41 of the RRS. In any event, the applicants did not refer to any such express or implied decision of the appointing authority in the form of order sought, or indeed anywhere in their application.

54The Tribunal notes that, in the circumstances, following the decision rejecting the complaint adopted by the Committee of Tellers under Rule 41 of the RRS, it was open to the applicants to seize the appointing authority in order for it to adopt a decision as to the regularity of the staff elections at issue, or indeed for it to annul the results of those elections, and in the event of an express or implied refusal, to make a complaint pursuant to Article 90(2) of the Staff Regulations (see, to that effect, judgments in de Dapper and Others v Parliament, EU:C:1976:127, paragraphs 28 and 29; Grynberg and Hall v Commission, EU:T:1994:86, paragraph 23; Marx Esser and del Amo Martinez v Parliament, EU:T:1996:130, paragraphs 17 to 22 and 33, and Loukakis and Others v Parliament, EU:F:2013:139, paragraphs 25, 29 and 46). In the light of the case-law referred to in paragraph 50 above, it was equally open to the applicants, following the refusal of the Committee of Tellers to grant their request made under Rules 41 and 42 of the RRS, to submit a complaint, within the meaning of Article 90(2) of the Staff Regulations, directly to the appointing authority.

55However, the applicants submitted only one complaint. This was not made under Article 90(2) of the Staff Regulations but was a complaint of the kind provided for by Rules 41 and 42 of the RRS, to the Committee of Tellers. The decision to reject it was adopted by the Committee of Tellers and not the appointing authority, which had simply received a copy of the complaint and, as the Parliament maintained, was neither the author nor a co-author of the decision of the Committee of Tellers of 19 December 2013.

56In those circumstances, contrary to the requirements of Article 91(2) of the Staff Regulations, which are designed to enable and encourage the settlement of disputes arising between officials or other members of staff and the administration, in the present case no request or complaint was submitted directly to the appointing authority, calling on it to review the decision of the Committee of Tellers of 19 December 2013 or the Staff Committee elections in general. Furthermore, the Tribunal notes that, as the applicants admit, they made no attempt to check with the appointing authority whether it was still necessary, following the rejection of a complaint by the Committee of Tellers under Rule 41 of the RRS, to refer the matter to the appointing authority in accordance with Article 90(2) of the Staff Regulations in order to be allowed to bring a subsequent action under Article 270 TFEU and Article 91 of the Staff Regulations.

57It follows that the present action, which is brought against the Parliament but concerns the legality of election results declared by the Committee of Tellers and definitively confirmed on 19 December 2013, and not a decision of the appointing authority, is inadmissible having regard to the requirements of the case-law specific to electoral matters, as referred to above.

58This conclusion is not affected by the judgment in Vanhellemont v Commission (EU:T:2005:406), on which the applicants have relied. There is a clear distinction between the factual and legal circumstances which gave rise to that case and those at issue in the present case. In paragraph 27 of that judgment, the Court of First Instance (as it then was) pointed out that, in relation to elections to the Staff Committee of the European Commission, the electoral office did not have power to adjudicate on objections concerning the validity of elections, but was required, pursuant to Rule 20 of the election rules adopted by the General Meeting of Commission staff, to refer such objections to the Commission without delay. The Court of First Instance then held, in the next paragraph, that the adverse act in respect of which the action was brought was therefore the implied decision of the Commission not to intervene, taken in January 2003, after the electoral office had referred the applicant’s objections of 23 December 2002 to the appointing authority of the Commission under Rule 20 of the applicable election rules. On that basis the Court of First Instance concluded that the action was admissible only in so far as it was directed against that adverse act of the appointing authority.

59Thus, in the judgment in Vanhellemont v Commission (EU:T:2005:406) the action was held to be admissible only in so far as it related to an act of the appointing authority. In this case, by contrast, it is clear not only that the applicants failed to refer the matter directly to the appointing authority, but also that, unlike the election rules referred to in the preceding paragraph, the RRS do not provide for the Committee of Tellers to refer complaints made to it to the appointing authority, in order for the appointing authority to adjudicate on them in accordance with Article 90(2) of the Staff Regulations. Furthermore, although Rule 41 of the RRS admittedly provides that ‘[t]he Committee of Tellers alone shall be competent to deal with any disputes concerning, or any complaints concerning the organisation of elections to the Staff Committee’, the fact remains that, in the light of the case-law referred to above, where (as in this case) such a body decides not to uphold a complaint made by a candidate or voter, the regularity of that decision and its reasoning, as well as that of the voting operations generally, may still be subject to the administrative review incumbent on the appointing authority in electoral matters. It should be pointed out in this regard that it is the acts or omissions of the appointing authority in the exercise of this power to review the regularity of elections which are challengeable before the Tribunal under Article 270 TFEU (see, to that effect, judgment in Loukakis and Others v Parliament, EU:F:2013:139, paragraph 101).

60In particular, the obligation (which applies equally in electoral matters) to submit a complaint under Article 90(2) of the Staff Regulations prior to bringing any action under Article 270 TFEU concerning an act or omission of the appointing authority in connection with its duty to review the regularity of elections to the Staff Committee, cannot be disregarded on the ground that a body, here the Committee of Tellers, to which, moreover, the appointing authority’s power to adjudicate on complaints has not been delegated, has power, by virtue of a text adopted by the Staff Committee and the staff of the institution itself, to adjudicate on disputes connected with the conduct of the elections and their results.

61While it is true that the Staff Regulations, in particular the second paragraph of Article 1 of Annex II, give the General Meeting of officials a legislative power in electoral matters in order to complete, within each institution, the legislative framework established by the Staff Regulations with regard to staff representation (see the judgment in Maindiaux and Others v ESC, EU:T:1990:18, paragraph 45), the Tribunal must point out that like the institutions themselves, neither General Meetings of officials nor bodies established by the Staff Regulations, such as Staff Committees, are competent, under the ‘conditions for election to the Staff Committee’, such as the RRS, adopted by them under the second paragraph of Article 1 of Annex II to the Staff Regulations, to derogate from an express rule in the Staff Regulations, in this case Article 90(2) (see, to that effect, judgment in Schneider v Commission, T‑54/92, EU:T:1994:283, paragraph 19).

62Furthermore, it should be emphasised that the purpose of a complaint under Rule 41 of the RRS is to seek a re-examination by the Committee of Tellers, a body which has no power to involve the appointing authority, of the results of the elections as declared by that committee. Ultimately, the decision thus issued by the Committee of Tellers, here within the short timescales laid down by the RRS, simply confirms, or as the case may be, invalidates the results of the elections, as the applicants have acknowledged. On that basis, as has been pointed out in paragraphs 46 and 47 above, the Tribunal has no power to rule directly, in the absence of any decision of the appointing authority of the defendant institution, on the legality of a decision of the Committee of Tellers.

63By contrast, the decision adopted by the appointing authority when ruling on a complaint brought under Article 90(2) of the Staff Regulations in connection with an electoral matter, made in light of the results of the elections and with regard to its duty to ensure that its officials and other members of staff have complete freedom to choose their representatives in accordance with the established rules, is one of whether to intervene or to refrain from intervening in the electoral process. It is in those circumstances that, in electoral matters, the Tribunal has jurisdiction to review the legality of a decision of the appointing authority in order to determine (amongst other things) whether ‘[the appointing authority] has failed to adopt a measure prescribed by the Staff Regulations’ within the meaning of the first paragraph of Article 90(2) of those regulations.

64In this regard, the Tribunal cannot depart from the tenor and underlying logic of the settled case-law relating to staff elections held within the various EU institutions on the ground that, in relation to the Parliament (a) the wording of Rule 41 of the RRS, as adopted by the Staff Committee and the General Meeting of officials, might lead voters and candidates to believe that the Courts of the European Union have jurisdiction to rule directly on the legality of decisions adopted by the Committee of Tellers and (b), at this stage, the Parliament has declined to use its power of intervention so as to bring about an amendment to wording of that article, the better to reflect the pre-litigation requirements which apply in electoral matters. This is especially so in circumstances such as those of the present case, where, as they explained at the hearing, the applicants made a conscious decision to bring the action without first putting the matter before the appointing authority, on the basis that they did not think it was desirable for the appointing authority to intervene in the electoral process, and where they expressly rely on Rule 41 of the RRS and Article 91 of the Staff Regulations, as providing the legal basis for their action, not Articles 90 and 91 of the Staff Regulations.

65Finally, it is of no greater significance to this case that, in the judgment in Sabbatucci v Parliament (T‑42/98, EU:T:1999:247), the Court of First Instance dismissed on the merits an action which had been preceded only by a complaint to the Committee of Tellers, not a complaint under Article 90(2) of the Staff Regulations. This is so not least because, in that case, a settlement was reached between the applicant and the appointing authority in fact after the appointing authority had decided, in the context of proceedings for interim measures brought in accordance with the specific procedure laid down in Article 91(4) of the Staff Regulations, to recount the votes, or in other words to adopt a measure prescribed by the Staff Regulations.

66It follows from all of the foregoing considerations that this action must be dismissed as inadmissible.

Costs

67Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to bear his own costs and to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(2) of the Rules, a successful party may nevertheless be ordered to bear his own costs and to pay some or all of the costs incurred by the other party if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the other party incur costs which are held to be unreasonable or vexatious.

68For the reasons set out in this judgment, the applicants have been unsuccessful in their action. Furthermore, in its pleadings the Parliament has expressly requested that the applicants be ordered to pay the costs. However the Tribunal observes that, as pointed out in paragraph 64 above, the wording of Rules 41 and 42 of the RRS could lead voters and candidates, such as the applicants, to believe that the Courts of the European Union have jurisdiction to rule directly on the legality of decisions adopted by the Committee of Tellers. The Parliament has acknowledged this ambiguity, but informed the Tribunal that it had decided not to intervene to amend the wording and that its staff had not been duly informed in that regard.

69Having regard to this attitude on the part of the defendant, and while taking into account the fact that the applicants did not make any enquiries of the appointing authority, in order to establish whether, following the rejection of a complaint by the Committee of Tellers under Rule 41 of the RRS, such as the rejection they had received, it was necessary to bring a prior complaint under Article 90(2) of the Staff Regulations, the Tribunal considers it appropriate to apply Article 102(2) of the Rules of Procedure and will therefore rule that the Parliament is to bear its own costs and to pay half of those incurred by the applicants.

Operative part

On those grounds,THE CIVIL SERVICE TRIBUNAL(Second Chamber)hereby:

1.Dismisses the action as inadmissible;

2.Declares that Mr Colart and the other applicants whose names appear in the Annex to this judgment shall bear half of their own costs;

3.Declares that the European Parliament shall bear its own costs and orders it to pay half of the costs incurred by the applicants.

Delivered in open court in Luxembourg on 11 December 2014.