C-412/92

PARLIAMENT v MESKENS

OPINION OF ADVOCATE GENERAL DARMON delivered on 21 April 1994 *

Mr President, 4. The decisions were based on internal Par­ Members of the Court, liament rules dating from 1979, the second paragraph of Article 3 of which provided as follows:

1. In the context of the Community civil 'Temporary staff recruited otherwise than service, what is the nature of the obligation from lists drawn up following external open imposed by the first paragraph of Article 176 competitions may not take part in internal of the EEC Treaty on an institution whose competitions, save where there has been a act has been annulled by the Courts? special decision to that effect by the appoint­ ing authority after obtaining the opinion of the Joint Committee'.

2. That is the principal question raised by 5. By judgment of 8 November 1990, which this appeal, the background to which I shall has acquired the force of res judicata, ('the now describe. first judgment'), the Court of First Instance of the European Communities annulled the contested decisions.

3. Eighteen members of the temporary staff 6. In the interim, the Parliament had, on at the European Parliament ('the Parlia­ 15 March 1989, amended the aforementioned ment'), including Mireille Meskens, brought rules: in future members of the temporary an action in 1988 for the annulment of indi­ staff who had seven years' seniority were vidual decisions by which that institution entitled to apply for such posts. had refused to allow them to take part in an internal competition (No B/164) for the recruitment of administrative assistants.

13. As the Parliament did not reply within the requisite period of four months, Mrs Meskens lodged an application before the Court of First Instance headed 'Action for 11. On 19 April 1991, the Parliament replied annulment' in order to obtain that the new rules could be 'regarded as complying with the Staff Regulations and with all the relevant Community case-law ...' and that therefore 'by putting the new rales

— a declaration that by failing to take the 1 — Paragraphs 10 to 13. necessary measures to comply with the

I - 3760

PARLIAMENT v MESKENS

first judgment, the Parliament had failed rather than for annulment 3and dismissing to fulfil its obligations; the applicant's claims relating to material damage 4 the Court of First Instance awarded her BFR 50 000 as compensation for non-material damage flowing from 'the refusal of the Secretary-General (of the Par­ — an order that the Parliament should pay liament) to take any specific measure to her the sum of ECU 100 per day from eliminate the consequences of the decision 17 July 1991 until the adoption of the annulled', that refusal being of 'such a kind requested measures. as to make the applicant uncertain and anx­ ious with regard to her future at work'. 5

14. The Court considered whether the new internal rules adopted by the Parliament sat­ isfied its obligation under Article 176 of the 17. The Parliament puts forward four pleas 2 Treaty. in law in support of its appeal.

20. There are instances where implementing Article 176 poses no problem. Take the fol­ lowing case: the appointing authority wrongly considers that a member of its staff cannot receive a promotion based on length of service. It refuses to uphold his request to 23. The institutions must certainly seek a that effect and his subsequent complaint. The solution which wholly compensates the decision is challenged in the Court of First damage suffered by a candidate who has Instance, which annuls it. The appointing unlawfully been prevented from taking part authority then complies with the judgment in a competition. If a sort of 'restitutio in by re-establishing the rights of the person integrum' does not prove possible, and if, in concerned as from the day on which they the absence of means of doing so, the were created. appointing authority does not achieve total compensation, the residual damage — of which the person claiming to be affected must establish the existence and magnitude •—• must be compensated by way of damages together with interest.

21. However, there are cases — as is shown by the case before you — where compliance with the judgment poses more complex problems, in particular because interests other than those of the applicant are involved. 24. That is, after all, the meaning of the sec­ ond paragraph of Article 176, which pro­ vides:

22. Must an institution annul a competition because a candidate was unfairly denied the 'This obligation (to take the necessary mea­ opportunity to take part? Such a measure — sures to comply with the annulling judg- which, however, was not requested in the present case — would seriously hamper the working of the institution and unfairly injure 6 — Judgment in Case 144/82 Detti v Court of Justice [1983] the admitted candidates who had not acted ECR 2421, paragraph 33.

27. To summarize: if an action had been brought under the second paragraph of Arti­ cle 176 of the Treaty the Court of First Instance could have considered, pursuant to 25. That is precisely where the fault lies in the second paragraph of Article 215 to which the contested decision. I am not saying that Article 176 refers, whether despite the new the adoption of the new rules did not cause rules passed by the Parliament Mrs Meskens Mrs Meskens damage for which the Parlia­ had suffered residual damage as a result of ment may bear non-contractual liability. I the measure annulled by the first judgment, merely say that, in order to impute this and could have ordered compensation by residual damage to an infringement by the way of an award of damages together with Parliament of its obligation under the first interest. paragraph of Article 176, the Court of First Instance should, whilst refraining from encroaching upon the institution's powers, have specified the additional measure which the Parliament was to take in order to achieve full compensation. 28. It could not, however, impute to the Par­ liament a service-related fault resulting from an infringement of the first paragraph of Article 176 without determining the measure or measures with legal effects which that institution was bound to take in order to comply fully with the first judgment. 26. The suggestions put forward by the Court of First Instance 'by way of illustra­ tion' in paragraphs 79 and 80 of its judgment do not fulfil that requirement. The organiza­ tion of new tests open to all staff of the insti­ tution, or to the 18 applicants in the first case, would have been likely to raise difficul­ 29. The contested judgment is therefore ties which justified the Parliament's not open to criticism by the Court and I propose doing so. As regards establishing a 'dialogue' that it be annulled.

33. With regard to the second limb, refer­ ence must be made to the wording of Arti­ — Articles 4, 27 and 29 of the Staff Regula­ cle 40 of the Statute of the Court of Justice, tions of Officials of the European Com­ relating to the interpretation procedure. That munities, article provides that 'if the meaning or scope of a judgment is in doubt, the Court shall construe it on application by any party or any institution of the Community establish­ ing an interest therein'. Clearly, it applies if — Articles 90 and 91 of those regulations. new proceedings have not been instigated, but it does not prohibit the Court of First Instance from interpreting one of its previ­ ous decisions in order to decide a new action between the same parties. Furthermore, paragraph 69 of the contested judgment 31. Relying on Article 33 of the Statute of makes it clear that it was the Parliament itself the Court of Justice, the Parliament com­ which caused such an interpretation to be plains that in paragraphs 69 to 71 of the con­ necessary. By submitting in response to Mrs tested judgment the Court of First Instance Meskens' new claim the defence that 'it was did not give the grounds for its decision 'in unnecessary to take specific measures an appropriate and lawful manner'. More because the Court rejected, in (the first judg­ particularly, it complains that the Court pro­ ment), by implication, the applicants' request ceeded to make an analysis of its previous to authorize them to take part in' Competi­ judgment although its composition was now tion B/164, the Parliament put the Court in different, an analysis which it was only com­ the position of having to interpret its previ­ petent to make in the context of an applica­ ous decision in order to assess the merits of tion for interpretation of a judgment. that defence.

39. Although the action was wrongly enti­ tled 'Action for annulment', such an action should be regarded as an action for damages, 38. With regard to the complaint of distor­ as the Court rightly did after having asked tion, I note that in her application, the sub­ 9 the applicant to specify the subject-matter of stance of which I have already summarized, 10 her application. It is not for the annulment Mrs Meskens claimed that the Court of First of an administrative measure, but for the payment of a sum of money.

7 — Paragraph 79. 8 — Ibidem. 9 — Paragraph 13, above. 10 — Paragraph 28 of the contested judgment.

I - 3765

OPINION OF MR DARMON — CASE C-412/92 P

40. Furthermore, as it is a financial claim, 42. I will now turn to the other limb of the the Court of First Instance has unlimited plea. jurisdiction under the last sentence of Arti­ cle 91(1) of the Staff Regulations.

43. I have referred to the exchange of corre­ spondence which occurred, following the first judgment, between Mrs Meskens' law­ 13 41. It is clear from the Court's case-law on yer and the Parliament. Community civil service that in this sphere the Court — and therefore, since its creation, the Court of First Instance — has

47. I therefore propose that the Court should:

— annul the judgment delivered on 8 October 1992 by the Court of First Instance (Fifth Chamber) in Case T-84/91 ([1992] ECR II-2335);

— order Mrs Meskens to pay the costs of this appeal, save those relating to the intervention, which must be borne by the intervener.

I - 3767