Judgments nº T-310/18 of Tribunal General de la Unión Europea, October 24, 2019

• Resolution Date: October 24, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-310/18

(Social policy - Dialogue between the social partners at EU level - Agreement entitled ‘General framework for informing and consulting civil servants and employees of central government administrations’ - Joint request of the signatory parties seeking the implementation of that agreement at EU level - Refusal by the Commission to submit a proposal for a decision to the Council - Action for annulment - Challengeable act - Admissibility - Commission’s discretion - Autonomy of the social partners - Principle of subsidiarity - Proportionality)

In Case T-310/18,

European Federation of Public Service Unions (EPSU), established in Brussels (Belgium),

Jan Goudriaan, residing in Brussels,

represented by R. Arthur, Solicitor, and by R. Palmer and K. Apps, Barristers,

applicants,

v

European Commission, represented by I. Martínez del Peral, M. van Beek and M. Kellerbauer, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of the Commission’s decision of 5 March 2018 refusing to submit to the Council of the European Union a proposal for a decision to implement the agreement entitled ‘General framework for informing and consulting civil servants and employees of central government administrations’, signed by the Trade Unions’ National and European Administration Delegation (TUNED) and European Public Administration Employers (EUPAE) on 21 December 2015,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

Composed, at the time of deliberation, of S. Gervasoni, President, L. Madise, R. da Silva Passos, K. Kowalik-Bańczyk (Rapporteur) and C. Mac Eochaidh, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 23 May 2019,

gives the following

Judgment

Background to the dispute

1 By consultation document C(2015) 2303 final of 10 April 2015, the European Commission invited management and labour -- the social partners --, in accordance with Article 154(2) TFEU, to express their views on the possible direction of European Union action concerning a consolidation of the EU Directives on information and consultation of workers. That consultation concerned inter alia the possible extension of the scope of application of those directives to cover civil servants and employees in public administrations in the Member States.

2 On 2 June 2015, the social partners sitting on the Social Dialogue Committee for Central Government Administrations -- namely the Trade Unions’ National and European Administration Delegation (TUNED), on the one hand, and the European Public Administration Employers (EUPAE), on the other hand -- informed the Commission on the basis of Article 154(4) TFEU of their desire to negotiate and to conclude an agreement on the basis of Article 155(1) TFEU.

3 On 21 December 2015, TUNED and EUPAE signed an agreement entitled ‘General framework for informing and consulting civil servants and employees of central government administrations’ (‘the Agreement’).

4 By letter of 1 February 2016, TUNED and EUPAE jointly requested the European Commission to submit a proposal for the implementation of the Agreement at EU level by a decision of the Council of the European Union adopted on the basis of Article 155(2) TFEU.

5 On 5 March 2018, the Commission informed TUNED and EUPAE that it had decided not to submit to the Council a proposal for a decision implementing the Agreement at EU level (‘the contested decision’).

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

Procedure and forms of order sought

7 By application lodged at the Court Registry on 15 May 2018, the applicants, namely, on the one hand, the European Federation of Public Service Unions (EPSU) -- an association that brings together European trade union associations representing public service workers and which created TUNED jointly with the Confédération européenne des syndicats indépendants (European Confederation of Independent Trade Unions) (CESI) -- and, on the other hand, Mr Jan Goudriaan, Secretary General of EPSU, brought the present action.

8 The Commission lodged its defence on 26 July 2018.

9 The applicants lodged their reply on 19 September 2018.

10 By a separate document lodged at the Court Registry on 11 October 2018, the applicants filed a request for confidential treatment vis-à-vis the public of certain information contained in the annexes of the application.

11 The Commission lodged a rejoinder on 14 November 2018.

12 By order of 13 December 2018, EPSU and Willem Goudriaan v Commission (T-310/18, not published, EU:T:2018:1018), the President of the Ninth Chamber rejected an application to intervene in support of the applicants made by the European Transport Workers’ Federation (ETF).

13 By way of measures of organisation of procedure, adopted pursuant to Article 89(3)(a) and (b) of the Rules of Procedure, the Court set out written questions for the parties to answer at the hearing.

14 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 23 May 2019. At the end of the hearing, the President of the Ninth Chamber, extended composition, decided not to close the oral part of the procedure.

15 As a measure of organisation of procedure adopted pursuant to Article 89(3)(b) of the Rules of Procedure, the Court invited the applicants to comment in writing on an argument advanced by the Commission at the hearing. The applicants complied with that request within the time allowed.

16 The oral procedure was closed by decision of the President of the Ninth Chamber, Extended Composition, of the Court, on 24 June 2019.

17 The applicants claim that the Court should:

- annul the contested decision;

- order the Commission to pay the costs.

18 The Commission contends that the Court should:

- dismiss the action as inadmissible in so far as it is submitted by M. Goudriaan;

- dismiss the present action in its entirety as unfounded;

- order the applicants to pay the costs.

Law

Admissibility

Existence of a challengeable act

19 In the first place, it must be noted that, pursuant to the first paragraph of Article 263 TFEU, the EU judicature is required to review the legality of acts of the institutions which are ‘intended to produce legal effects vis-à-vis third parties’.

20 It follows that an action for annulment is available in the case of all measures or provisions adopted by the institutions, whatever their nature or form, which are intended to have legal effects (judgments of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraphs 39 and 42, and of 23 April 1986, Les Verts v Parliament, 294/83, EU:C:1986:166, paragraph 24).

21 In the present case, it is appropriate to examine, first, whether the contested decision may be classified as a preparatory act and, secondly, whether the broad discretion available to the Commission may have an effect on the admissibility of the action.

- Whether the act is to be classified as a preparatory act

22 According to settled case-law, it is in principle only those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure and which are intended to have legal effects, which are open to challenge and not, inter alia, intermediate measures whose purpose is to prepare for the final decision and which do not have those effects (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 17 July 2008, Athinaïki Techniki v Commission, C-521/06 P, EU:C:2008:422, paragraph 42).

23 It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings, first, were themselves the culmination of a special procedure distinct from that intended to permit the Commission or the Council to take a decision on the substance of the case and, second, themselves produce binding legal effects (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11).

24 The reference to a proposal is a clear indication that the content of the document is not intended to have legal effects and, therefore, that it is not an act that is open to challenge (see, to that effect, judgment of 1 December 2005, Italy v Commission, C-301/03, EU:C:2005:727, paragraph 22 and 33). That is the case, inter alia, for a proposal submitted by the Commission in the course of a process involving several stages where such a proposal is an intermediate measure that does not produce binding legal effects (see, to that effect, the order of 15 May 1997, Berthu v Commission, T-175/96, EU:T:1997:72, paragraphs 21 and 22).

25 In addition, where the decision amounts to a rejection, it must be appraised in the light of the nature of the request to which it constitutes a reply (judgments of 8 March 1972, Nordgetreide v Commission, 42/71, EU:C:1972:16, paragraph 5, and of 24 November 1992, Buckl and Others v Commission, C-15/91 and C-108/91, EU:C:1992:454, paragraph 22). It follows that a refusal constitutes an act in respect of which an action for annulment may be brought under Article 263 TFEU...