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Cases 7/56 and 3/57-7/57, Algera, Court of Justice of the EC, [1957-8] ECR 39 and Case C-327/91, France v Commission, Court of Justice of the EC, [1994] ECR I-3641

Jan Klabbers

Relevance of the cases

The cases under discussion may deal with radically different topics (employment law in Algera, external relations and anti-trust in France v Commission) but have in common that both address the limits of the autonomy of the institutions of the EU. In both, the Court discussed how the institutions of the Union relate to the Union itself, and how this affects what it is they are allowed to do. In both also the issue of a revocation of a decision taken by one of the institutions was at issue, and it is often for the latter reason that Algera is remembered.1 Both judgments have become classic examples (albeit minor classics perhaps) of the way the CJEU conceptualizes the EU’s internal constitutional law.

I. Facts

The facts in Algera were rather complicated, but essentially boiled down to the following. Ms Dineke Algera and her four co-complainants (I will from now on just refer to Ms Algera) were temporarily employed by the Common Assembly of the European Coal and Steel Community, the forerunner of today’s European Parliament. The Assembly aimed to streamline its personnel classifications and remunerations, moving from contracts to a public law system, and had in December 1955 issued an order bringing Algera (following her own acceptance hereof) under Staff Regulations, then still in the drafting stage. The drafting was to have been done, following art. 78 ECSC, by the Committee of Presidents of the institutions, representing and thus harmonizing the employment situation in all EU institutions at the time. Instead, the Assembly was the only one of the institutions to claim autonomous decision-making powers. It was understood that bringing Ms Algera within the ambit of the Staff Regulations entailed the offer of a permanent position. In June 1956 it became clear that she would have to accept a drop in salary and what she effectively held to be a demotion. She refused to accept this, at which point, on 12 July 1956, the offer of permanent employment was withdrawn and replaced by a temporary assignment.[1] [2] Ms Algera went to Court claiming that the letter of 12 July 1956 should be annulled.

By contrast, the facts in France v Commission were considerably less complicated. In September 1991, the Commission of the EU had concluded an agreement with the US on co-operation in anti-trust matters, therewith codifying and streamlining an informal practice that had continued for a number of years.[3] France complained before the Court that in doing so, the Commission had overstepped its competences: in the EU system, the conclusion of agreements was the sole prerogative of the Council, unless treaty-making powers had been explicitly delegated.

II. The legal question

In Algera, the Court was asked to annul the contested decision of 12 July 1956. This then revolved around the question whether a revocation by the administration is possible if creative of a vested right for an individual. In France v Commission, the Court was asked to declare that the 1991 agreement was void. The Court itself, without stating anything on the matter, must have realized that annulling an international agreement is not something that is within its jurisdiction; hence, it took the step of rephrasing the question so as declare void the act by which the Commission sought to conclude the agreement.[4] The latter is an internal EU act and can thus be annulled by the CJEU; the former, however, is an international act which cannot unilaterally be annulled—and perhaps cannot be annulled at all.[5]

III. Excerpts (Algera)

First of all, an error of reasoning which is liable to lead in this connexion to a vicious circle must be eliminated: it consists in asserting the existence of a vested right, and then inferring therefrom that that right cannot be revoked. In fact, if the right conferred by an administrative measure can be unilaterally revoked by the administration, then the simple fact is that it does not constitute a vested right.

The orders of 12 December 1955 declare that the applicants are brought within the ambit of the Staff Regulations, appoint them to certain ‘grades’ and fix their rank at certain specified steps of seniority.

If those orders are legal and valid in law, they constitute individual administrative measures giving rise to an individual right. The possibility of withdrawing such measures is a problem of administrative law, which is familiar in the case-law and learned writing of all the countries of the Community, but for the solution of which the Treaty does not contain any rules.

Unless the Court is to deny justice it is therefore obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing, and the case-law of the member countries. It emerges from a comparative study of this problem of law that in the six Member States an administrative measure conferring individual rights on the person concerned cannot in principle be withdrawn, if it is a lawful measure; in that case, since the individual right is vested, the need to safeguard confidence in the stability of the situation thus created prevails over the interests of an administration desirous of reversing its decision. This is true in particular of the appointment of an official. If, on the other hand, the administrative measure is illegal, revocation is possible under the law of all the Member States. The absence of an objective legal basis for the measure affects the individual right of the person concerned and justifies the revocation of the said measure. It should be stressed that whereas this principle is generally acknowledged, only the conditions for its application vary.

[...]

As regards the orders of 12 December 1955, this dispute raises the question, in relation to the provisions of the Treaty establishing the European Coal and Steel Community, whether the defendant could validly bring the applicants within the ambit of the Staff Regulations and determine their classification without the consent or the opinion of the Committee of Presidents provided for in Article 78 of the Treaty, or whether it could do so only with the said consent or the said opinion.

[...]

Examination of the problem as to whether the Common Assembly had authority to determine the salary of its officials on its own, or whether it could do so only with the participation of the Committee of Presidents provided for in Article 78 of the Treaty, leads to the following considerations:

(1) The institutions are autonomous within the limits of their powers (fourth paragraph of Article 6 of the Treaty). Thus, in its judgment in Case 1/55 Kergall v Common Assembly, the Court acknowledged that the Common Assembly had authority ‘to organize its Secretariat as it wished and in the interests of the service’.

Moreover, the second subparagraph of Article 78 (3) merely creates an exception to the rule of autonomy laid down in the previous subparagraph and is therefore to be strictly construed. However, that does not prevent Article 78 (3) from giving the Committee of Presidents authority of its own as regards the number of servants and their salary scales: those factors must be ‘determined in advance’ by the said Committee.

That provision can be explained by the fact that only the Community has legal personality, and its institutions do not. From that springs the need to harmonize the life of the four institutions and to provide for financial and budgetary supervision, a task entrusted by Article 78 of the Treaty to the Committee of Presidents. It should be stressed that no other body has a power of preliminary supervision in financial matters.

(2) The second subparagraph of Article 78 (3) of the Treaty confers the power to determine the number of servants and their salary scales on the Committee of Presidents only to the extent to which they have not been fixed under another provision of the Treaty or of an implementing regulation. Such is not the case in this instance. The supervision provided for by the Treaty would be ineffective if each of the institutions had power to issue internal regulations fixing the number or the salary scales of its servants. Such an interpretation would lead to an absurd result. The interpolated clause of the second subparagraph of Article 78 (3) refers only to those cases for which the Treaty lays down a special method for the fixing of a salary and to the eventuality of an implementing regulation based on such a provision of the Treaty. Any other interpretation would deprive Article 78 of its content and hence must be rejected.

Nor can the autonomy of the Common Assembly, as a Parliamentary Assembly, be said to conflict with the power conferred on the Committee of Presidents by Article 78 of the Treaty. In fact, that article applies to all the institutions of the Community without distinction; the fact that the Common Assembly has special powers changes nothing in that respect; its functional autonomy exists only within the limits of its powers, as laid down by the Treaty (last paragraph of Article 6).

  • (3) Therefore, the power attributed to the Committee of Presidents by Article 78 of the Treaty applies in this instance. However, two arguments have been submitted to the Court in relation to the extent of that power:
  • (a) According to the first argument, in order to carry out effective supervision, the

Committee of Presidents must have a right of decision in financial matters.

[...]

According to another opinion, the theory of an implied power does not necessarily lead to the conclusion that the Committee of Presidents should have a right of decision in the sense described above, since it also has other means of exercising effective supervision.

[...]

In the event, the classification applied to the applicants by the orders of12 December 1955 proves to be unlawful according both to the first argument and to the second: according to the first argument, because the Common Assembly had not previously obtained the consent of the Committee of Presidents; according to the second argument, because the Common Assembly had not previously submitted the classification to the Committee of Presidents for its opinion, which it should also have done pursuant to the fourth paragraph of Article 2 of its Rules of Internal Administration as well as according to Article 43 (3) of its Rules of Procedure.

  • (Commission v France)
  • 15 The Court finds that, as is apparent from its actual wording, the Agreement is intended to produce legal effects. Consequently, the act whereby the Commission sought to conclude the Agreement must be susceptible to an action for annulment.

[...]

  • 19 Article 228(1) of the EEC Treaty, in the version in force at the time of the events material to this case, provided as follows: ‘Where this Treaty provides for the conclusion of agreements between the Community and one or more States or an international organization, such agreements shall be negotiated by the Commission. Subject to the powers vested in the Commission in this field, such agreements shall be concluded by the Council, after consulting the European Parliament where required by this Treaty.’
  • 20 The French Republic argues that that provision expressly reserves to the Council the power to conclude international agreements. Consequently, by concluding the Agreement, the Commission, which is empowered merely to conduct negotiations in that field, exceeded its powers.
  • 21 The Commission contends that the Agreement in fact constitutes an administrative agreement which it is competent to conclude. In view of the nature of the obligations which it lays down, failure to perform the Agreement would result, not in an international claim capable of giving rise to liability on the part of the Community, but merely in termination of the Agreement.
  • 22 The Commission further points out that, in any event, Article IX of the Agreement, cited above, precludes the parties from interpreting its provisions in a manner inconsistent with their own laws (and, moreover, as regards the European Communities, with the laws of the Member States) or as requiring any change in their own laws.
  • 23 As the Court has already found, the Agreement produces legal effects.
  • 24 Next, it is the Community alone, having legal personality pursuant to Article 210 of the Treaty, which has the capacity to bind itself by concluding agreements with a non-member country or an international organization.
  • 25 There is no doubt, therefore, that the Agreement is binding on the European Communities. It falls squarely within the definition of an international agreement concluded between an international organization and a State, within the meaning of Article 2(1)(a)(i) of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organizations or between International Organizations. In the event of non-performance ofthe Agreement by the Commission, therefore, the Community could incur liability at international level.
  • 26 That being so, the question is whether the Commission was competent under Community law to conclude such an agreement.
  • 27 As the Court explained in Opinion 1/75 [...] Article 228 uses the expression ‘agreement’ in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation.
  • 28 Furthermore, as the Advocate General has pointed out in paragraph 37 of his Opinion, Article 228 constitutes, as regards the conclusion of treaties, an autonomous general provision, in that it confers specific powers on the Community institutions. With a view to establishing a balance between those institutions, it provides that agreements between the Community and one or more States are to be negotiated by the Commission and then concluded by the Council, after consulting the European Parliament where required by the Treaty. However, the power to conclude agreements is conferred on the Council ‘subject to the powers vested in the Commission in this field’.
  • 29 According to the French Government, those powers vested in the Commission are limited to agreements to be concluded by the Commission for the recognition of Community laissez-passer (Article 7 of the Protocol on the Privileges and Immunities of the European Communities). The French Government acknowledges that those powers may also extend to the conclusion of agreements which it describes as administrative or working agreements and which include, by way of example, the establishment of relations with the organs of the United Nations and the other international organizations referred to in Article 229 of the EEC Treaty.
  • 30 The Commission, relying on what it describes as international administrative agreements, maintains, first, that the exception provided for in Article 228 should not be interpreted in the restrictive manner suggested by the French Government. It points out that, if those who drafted the Treaty had really sought to limit its power to conclude treaties, the French version of Article 228 would have conferred power on the Council ‘sous reserve des competences attributes a la Commission’ and not ‘reconnues a la Commission’.
  • 31 Instead, the use of the term ‘reconnues’ in the French version shows, according to the Commission, that it may derive its powers from sources other than the Treaty, such as the practices followed by the institutions. Moreover, reasoning by analogy from the third paragraph of Article 101 of the Euratom Treaty, the Commission considers that it can itself negotiate and conclude agreements or contracts whose implementation does not require action by the Council and can be effected within the limits of the relevant budget without giving rise to any new financial obligations on the part of the Community, provided that it keeps the Council informed.
  • 32 That argument cannot be accepted.
  • 33 First, the expression ‘sous reserve des competences reconnues a la Commission’ derogates from the rule empowering the Council to conclude international agreements.
  • 34 Second, according to the second subparagraph of Article 4(1) of the EEC Treaty, ‘each institution shall act within the limits of the powers conferred upon it by this Treaty’. Consequently, the term ‘reconnues’ in the French version of Article 228 of the Treaty cannot have any meaning other than ‘attribuees’.
  • 35 Third, other language versions of Article 228 use terms suggesting that the powers in question are ‘attribuees’ rather than ‘reconnues’. That is the case in particular as regards the versions in Danish (‘som pa dette omrade er tillagt Kommissionen’), German (‘der Zustandigkeit, welche die Kommission auf diesem Gebiet besitzt’), Dutch (‘van de aan de Commissie te dezer zake toegekende bevoegheden’) and English (‘the powers vested in the Commission in this field’).
  • 36 Fourth, and in any event, a mere practice cannot override the provisions of the Treaty.
  • 37 It follows from the foregoing that the Commission cannot claim to derive from Article 228 of the Treaty powers analogous to those which it enjoys by virtue of the third paragraph of Article 101 of the Euratom Treaty.
  • 38 First, as the Advocate General has pointed out in paragraph 26 of his Opinion, Article 101 provides for a procedure which is quite different from that referred to in Article 228 of the EEC Treaty.
  • 39 Second, the EEC and the Euratom Treaties were negotiated simultaneously and signed on the same day; accordingly, if those negotiating the two treaties had intended to grant the Commission the same powers, they would have done so expressly.
  • 40 The Commission’s final argument against the French Government’s plea is that its power to conclude international agreements is all the more clear-cut in the present case, since the EEC Treaty has conferred on it specific powers in the field of competition. Under Article 89 of the Treaty and Regulation No 17 of the Council of 6 February 1962, the first regulation implementing Articles 85 and 86 of the EEC Treaty ... the Commission is entrusted with the task of ensuring the application of the principles laid down in Articles 85 and 86 of the EEC Treaty and the application of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings .
  • 41 That argument cannot be accepted either. Even though the Commission has the power, internally, to take individual decisions applying the rules of competition, a field covered by the Agreement, that internal power is not such as to alter the allocation of powers between the Community institutions with regard to the conclusion of international agreements, which is determined by Article 228 of the Treaty.
  • 42 The plea alleging lack of competence on the part of the Commission to conclude the Agreement at issue must therefore be upheld.

IV. Commentary

There is one striking similarity about the two cases: in both, the legal personality of the EU (respectively as ECSC and EC) is invoked. The individual institutions lack legal personality and this, it seems, has a serious implication. Lacking personality, the Commission cannot enter into treaties under international law, so France v Commission suggests, or rather, it cannot be held responsible in its own right and thus its behavior will inevitably be attributed to the EU. Here then, legal personality under international law is at stake. Algera, by contrast, suggests that domestic legal personality is required in order to hire staff; this is something only the Community can do, and hence (or so it seems) the ECSC Treaty envisaged a harmonizing role for the Committee of Presidents. As so often with the CJEU, however, the reasoning is a little opaque: while it may well be the case that employees enter into a relationship with the ECSC rather than the Assembly, it might not necessarily follow that therefore harmonization among the institutions is required.

Algera is mostly cited as authority for the proposition that lawful administrative measures creating individual rights cannot be revoked at will by the administration, and that unlawful measures may only be revoked within a reasonable period of time. But there is more to Algera than this finding alone: it is also an early illustration of the problems of gap-filling and the Court’s approach to it.[6] Where the Treaty contains no rules, the Court is ‘obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing and the case-l aw of the member countries’. Perhaps curiously, the Court fails to make any reference to international law, despite the existence, already at the time of the judgment, of a sizeable body of case-law from various staff tribunals of various international organizations. While the argument can be made that the civil service law of any international organization only applies within that organization, it also generally acknowledged that staff tribunals can and do take inspiration from each other.[7] Moreover, international civil service law is usually conceptualized as administrative law rather than as labour law, so in this light too the Court could have found inspiration and guidance in international civil service law. As so often, however, the Court by not looking at international law distanced itself from that body of law; the Court is happiest when it can cherry-pick international law, and has never aligned itself overtly with international law.[8]

Indeed, fairly typical for its general attitude is how in France v Commission it used an international law argument to protect the EU. It correctly surmised that under international law, the EU would be held responsible for any possible breaches by the Commission of the anti-trust agreement in question: acts or omissions of the Commission would end up being attributed to the EU (para. 25). Hence, the conclusion could be drawn (again, plausibly) that there is no such thing as an administrative agreement in international law binding merely parts of the administration,[9] and it followed that if under international law the responsible actor would be the EU, then it would only be proper for the EU to follow the prescribed treaty-making procedures. Hence, the Court relied on international law in order to prevent the EU from being held responsible under international law. Here then, international law was utilized so as to help protect the EU, and bearing this in mind it should not come as a surprise that the Court decided the way it did.

The international law argument strengthened the Court’s insistence that under EU law, the institutions can only act within the limits of their powers. This is a generally accepted starting point in the law of international organizations, and to see the Court endorse it is, as such, not very surprising. Interestingly though, the idea that institutions can only act within the limits of their powers is given a more restrictive interpretation than in international institutional law in general, with the Court noting that ‘a mere practice cannot override the provisions of the Treaty’ (para. 36). The precise import remains somewhat unclear: what exactly does the Court mean when it refers to a ‘mere practice’?

The International Court of Justice, by contrast, has generally accepted an argument that practice taking place within an organization may elucidate the meaning of treaty provisions, and can even come to affect the meaning of a treaty provision.[10] [11] Under art. 27 UN Charter, a valid decision by the Security Council requires the ‘concurring votes’ of the five permanent members of the Council. The practice grew, from the 1950s onwards, to treat abstentions as ‘concurring votes’, and this was accepted in 1971 in Namibia, with the ICJ holding that it ‘evidences a general practice of [the] Organization?! The icj stipulated the relevance of acceptance of the practice, and it could be argued that the Security Council’s practice therefore went beyond being a ‘mere practice’, but even so, it would seem that generally the CJEU has been more reluctant than the ICJ in accepting informal change through practice; if anything, this again pays homage to the idea that the EU is reluctant to view itself as a regular international organization (whatever that may be).

  • [1] See for example H. Nehl, Principles of Administrative Procedure in EC Law (Oxford, Hart 1999), p. 6.
  • [2] Craig suggests that Ms Algera’s involvement in industrial action may have had something to dowith the chain of events. See P. Craig, EU Administrative Law (Oxford, Oxford University Press 2006),pp. 614-15.
  • [3] For background, see generally A.D. Ham, ‘International Cooperation in the Antitrust Field and inParticular the Agreement between the United States of America and the Commission of the EuropeanCommunities’, (1993) 30 Common Market Law Review 571-97.
  • [4] See Commission v France, para. 17.
  • [5] It is controversial in international law whether any acts can be annulled (and if so, by whom) for considerations other than violations of jus cogens. For brief discussion, see J. Klabbers, ‘Straddling Law andPolitics: Judicial Review in International Law’, in R.St.J. MacDonald and D.M. Johnston (eds), TowardsWorld Constitutionalism (Leiden, Martinus Nijhoff, 2005), pp. 809-35.
  • [6] See T. Tridimas, The General Principles of EC Law (Oxford, Oxford University Press 1999), p. 10.
  • [7] For such a balanced assessment, see the first decision of the World Bank Administrative Tribunalin De Merode v World Bank, WBAT No. 1, judgment of 5 June 1981; note also how the CJEU’s staffcases, including Algera, make a regular occurrence in the leading general treatise on the topic: C.F.Amerasinghe, The Law of the International Civil Service (2nd edn, Oxford, Oxford University Press 1994).
  • [8] See J. Klabbers, ‘Straddling the Fence: The EU and International Law’, in A. Arnull and D. Chalmers(eds), Oxford Handbook of EU Law (Oxford, Oxford University Press, 2015), pp. 52-71.
  • [9] See generally J. Klabbers, The Concept of Treaty in International Law (Dordrecht, Kluwer 1996).
  • [10] For general discussion, see J. Arato, ‘Treaty Interpretation and Constitutional Transformation:Informal Change in International Organizations’, (2013) 38 Yale Journal of International Law 289-357.
  • [11] See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South WestAfrica) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16,para. 22. See also Jan Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge,Cambridge University Press 2009), pp. 209-10.
 
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