C-246/95

2. In September 1993, Madame Myrianne Coen (hereinafter 'the applicant'), an official at the Belgian Ministry of Foreign Affairs, 4. O n 15 December 1993, the applicant applied to the relevant authorities at the Ministry of Foreign Affairs for inclusion on * Original language: English. the list of recommended candidates. Her

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application was not forwarded to the Com­ should be deemed inadmissible. The appli­ mission, as it was out of time, and because cant contended that the submission to the the applicant was of a lower grade than the Commission of a list, from which her name minimum fixed by the Ministry for recom­ was omitted, adversely and definitively mended candidates. affected her interests by excluding her from this recruitment procedure. She relied on the Court's judgment in Oleificio Borelli 1 to argue that the requirement that national decisions forming part of a Community decision-making procedure be subject to 5. O n 14 January 1994, the applicant initi­ judicial review is a general principle of Com­ ated proceedings before the Belgian Council munity law, which would be infringed if the of State, Administrative Division, for the Council of State decided that it had no juris­ annulment of both the decision of the Min­ diction to review the contested decisions, as ister for Foreign Affairs proposing three can­ this would deprive her of any possibility of didates for appointment to posts as tempo­ submitting these to judicial review. rary officials in D G I A of the Commission and the decision not to put her name for­ ward for the posts in question (hereinafter the 'contested decisions').

' O n a proper construction of the fifth para­ graph of Article 173 of the Treaty of Rome, with respect to the period of two months prescribed therein for contesting a decision of the Commission, may a decision of a 10. In her report to the Council of State court of a Member State, finding an act of of 16 November 1994, the auditeur, the State concerned unlawful, cause time to Madame Debusschere, expressed the opinion start running again where the act in question that the Council of State would, in accord­ may have influenced the decision of the ance with Oleificio Borelli, be obliged to Commission which it is sought to contest? exercise jurisdiction to review the contested decisions if the Commission were bound by these. As the Commission was not so bound, she concluded that the application was inad­ missible in that it sought to challenge prepa­ ratory acts only. However, in view of the fact that no judicial remedy lies against decisions [If that question is answered in the affirma­ of the Council of State, she also concluded tive ....] that the question proposed by the applicant should be referred to the Court in accord­ ance with Article 177 of the Treaty.

In the case of a request that candidates be proposed for posts in the administration of the Commission of the European Communi­ ties, made during a meeting between the Per­ manent Representatives and the Secretary- General of the Commission and directly 11. At the oral hearing on 31 May 1995, the addressed to the Member States with no applicant indicated that the future judgment other form of publicity, or outside the of the Council of State on her application framework of a recruitment procedure pub­ might, possibly, constitute a new fact which lished in the Official Journal, is such a would cause time to start running again for request valid, particularly having regard to the purposes of bringing an action before the the rules governing the recruitment of mem­ Court of First Instance against the appoint­ bers of the temporary staff and officials of ment of Mr Tange. the Commission?'

III — Observations of the parties interference of any Member State or other third party in the action of the Community institutions; she relies upon Articles 11 and 27 of the Staff Regulations, and Costa ν 2 ENEL. She concludes that the appointing authority was not entitled to reserve any post for a national of a particular Member 13. Observations have been submitted by State and that the Commission took the can­ the applicant, the Belgian Government and didates presented by the Belgian Foreign the Commission. These may be summarized Ministry into consideration (and appointed as follows. one of them), thereby undermining the nec­ essarily objective character of the decision appointing officials to D G I A. The Com­ mission decisions were thus, in her view, adopted in breach of the principles of autonomy and independence and of the Staff 14. According to the applicant, the main Regulations. proceedings seek to challenge the right of a Member State to present and support candi­ dates for appointment as officials of the Commission; were the Council of State to annul the contested decisions, the applicant could seek damages in a separate action before the Belgian civil courts. The reference 16. The Belgian Government notes that the to Article 173 of the Treaty should be read as applicant has not presented a complaint in referring to Article 179 of the Treaty and accordance with the Staff Regulations Articles 90 and 91 of the Staff Regulations, (though this would not in any case affect the which govern the Court's jurisdiction to proceedings before the Council of State), resolve disputes between the institutions and that respect for the time-limits fixed by the persons to whom the Staff Regulations apply, Treaty is a matter of public policy, and that including candidates for posts in the institu­ there is no justification for reopening these tions. In her view, the answer to the first time-limits. question should be that a substantial new fact may cause the time-limits laid down by Articles 90 and 91 of the Staff Regulations to be reopened, and justify the examination of a challenge to a decision which had not been contested within the relevant time-limits. 17. The Commission also observes that the applicant did not present either a complaint under the Staff Regulations or an application by way of appeal to the Court of First Instance to contest either the appointment of Mr Tanghe or the Commission's decision not to appoint her to a post. Respect for the 15. As to the second question, the applicant time-limits set by Articles 90 and 91 of the argues that the independence of the Euro­ pean public service, an essential general principle of law, and the autonomy of Community law seek to guard against the 2 — Case 6/64 [1964] ECR 585.

Staff Regulations is a matter of public policy, IV — Examination of the questions of the intended to ensure that administrative deci­ national court sions may be considered definitive vis-à-vis the persons concerned once the deadline for contesting them has expired. The Commis- sion adds that a judgment of a court of law, whether of a national court or the Court of Justice, may not be considered a 'new fact' 19. Though the first question refers to the and that nothing in the file would justify the interpretation of the fifth paragraph of reopening of the applicable time-limits. It Article 173 of the Treaty, it is clear that the therefore proposes a negative answer to the Court's jurisdiction to rule on any (possible first question. future) dispute between the applicant and the Commission would be founded on Article 179 of the Treaty, and that Article 173 is not relevant to these proceedings. The conditions under which this jurisdiction is exercised are defined b y Articles 90 t o 91 a of the Staff Regulations, which are applied by analogy to temporary staff in accordance 18. While remarking that its proposed with Article 73 of the Conditions of answer to the first question would render an Employment of Other Servants. The Court answer to the second question superfluous, has long held that 'it is not only persons who the Commission goes on to explain the cir- have the status of officials or of employees cumstances of its invitation to the Member other than local staff who may bring an States. It was clear that the diplomatic ser- action before the Court to contest a decision vices of the Member States would have a adversely affecting them but also persons large number of candidates with the relevant claiming that status'. 3 In accordance experience for appointment to temporary with Article 3(1 )(a) of Council Decision posts in D G I A. Furthermore, in a letter to 88/591/ECSC, EEC, Euratom of 24 October the applicant of 22 March 1994, the Director- 1988 establishing a Court of First Instance of General of Personnel and Administration of the European Communities, 4this jurisdic- the Commission declared that the submis- tion is exercised at first instance by that sion of national lists of candidates which the Court. applicant was contesting before the Council of State would not influence either the examination of the very numerous applica- tions it had received, or the appointments to be made. The lists of candidates put forward by the Member States were added to the 20. The first question referred by the applications received following the press national court is predicated on the explicit announcements, making a total of 826 candi- premiss that 'the applicant would have no dates, of whom 16 were successful. The interest in obtaining from the Council of Commission concludes that an unsuccessful State the annulment of the contested deci- candidate who omits to employ the specific sions in proposing certain candidates, since means of recourse provided by the Staff Regulations and the Treaty should not be permitted to correct this omission by means of a reference for a preliminary ruling under 3 — Case 286/83 Alexis and Others ν Commission [1989] ECR 2445, paragraph 9 of the judgment. Article 177 of the Treaty. 4 — OJ 1988 L 319, p. 1; corrigenda, OJ 1989 L 241, p. 4.

she could not derive from that any chance of within the applicable time-limit. The first obtaining the appointment', if the time-limits question therefore seeks a ruling on whether 5 could not be reopened. This finding is con­ a judgment of a national court can constitute firmed by the express terms of the order for such a 'substantial new fact', where the deci­ reference, which states that the second ques­ sions contested before the national court tion only arises if the first question is with a view to their annulment may have answered in the affirmative. Thus the sole influenced the Commission's appointment object of the first question referred is to decision. ascertain whether the applicant may request the Commission to reconsider its decision to appoint Mr Tanghe, notwithstanding the expiry of the time-limits set by the Staff Regulations. 23. In the present case, the Court is being asked to provide an interpretation of a set of procedural rules which would have no dis­ cernible bearing on the proceedings before the national court. In these circumstances, the Court should, in my view, consider as a preliminary issue whether it has jurisdiction 21. It is not contested in the present pro­ to answer this question. ceedings that the applicant learned of the appointment of Mr Tanghe on 26 October 1994. N o complaint against this decision was lodged within three months of such notifica­ tion, in accordance with Article 90(2) of the Staff Regulations, nor, indeed, has any other 24. It is true, as the Court found in Dzodzi, action been taken by the applicant against that 'in accordance with the division of judi­ the Commission since. cial tasks between the national courts and the Court of Justice pursuant to Article 177, the Court gives its preliminary ruling without, in principle, having to look into the circum­ stances in which the national courts were prompted to submit the questions and envis­ age applying the provision of Community 22. The applicant relies on a number of law which they have asked the Court to judgments of the Court and of the Court of interpret'. 7 The Court went on to hold, First Instance to the effect that the emer­ however, that '[the] matter would be differ­ gence of substantial new facts may justify the ent only if it were apparent either that the submission by a complainant of a request, procedure provided for in Article 177 had pursuant to Article 90(1) of the Staff Regula­ tions, that the institution reconsider a decision which had not been challenged 6 — Case 28/72 Tontodonati ν Commission [1973] ECR 779; Case 173/80 Blasig ν Commission [1981] ECR 1649; Case 190/82 Blomefield ν Commission [1983] ECR 3981; Case 326/82 Aschermann ν Commission [1984] E C R 2253; Case 231/84 Valentini v Commission [1985] ECR 3027; Case T-35/93 5 — As noted in paragraph 14 of the present Opinion, the appli­ Cucchiara and Others v Commission [1994] ECR-SC cant indicated a different interest in having the contested I-A-127 and SC II-413. decisions annulled in her observations to this Court, namely, 7 — Joined Cases C-297/88 and C-197/89 Dzodzi [1990] the possibility of claiming damages. ECR 1-3763, paragraph 39 of the judgment.

27. The Court's lack of jurisdiction as regards the first question is demonstrated by the fact that no answer the Court could pro­ vide could have any bearing on the validity 26. Firstly, the sole stated object of the first of the contested decisions. The substantive question referred is to ascertain whether the matter pending before the Belgian court is applicant may defeat the time-limit to con­ whether participation by the Belgian State in test a Commission appointment decision which she admittedly failed to contest in time. This does not appear to me to corre­ 10 — Joined Cases 142/80 and 143/80 Amministrazione delle spond with the true purpose of Article 177, Finanze dello Stato ν Essevi and Salengo [1981] ECR 1413, paragraphs 13 to 18 of the judgment (Article 169 of the Treaty); Joined Cases 314/81 to 316/81 and 83/82 Procureur de L· République v Waterkeyn [1982] ECR 4337, para- graphs 13 to 16 (Article 171 of the Treaty). 11 — Case C-201/89 Le Pen [1990] ECR I-1183, paragraphs 8 to 8 — Ibid., paragraph 40 of the judgment. 11 of the judgment (Article 1 of the 1965 Protocol on Privi- 9 — Case C-368/89 Crispoltoni [1991] ECR I-3695, paragraph 11 leges and Immunities (and Articles 178 and 183 of the of the judgment. Treaty)).

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28. It is clear that, as a matter of Commu- 30. It would have been open to the referring nity law, the jurisdiction of the Council of court in the present case to examine the con- State to rule on the validity of the contested formity of the contested decisions with decisions is in no way related to the admis- Community law, in particular with the pro- sibility of any proceedings the applicant may visions of the Staff Regulations which apply wish to commence against the Commission. to the situation of the applicant, and to Prompted by the applicant, the Council of request a preliminary ruling from the Court State appears to have been motivated in on any issue of Community law which was referring the questions in the present case by necessary for it to reach judgment; this the necessity to avoid infringing what Advo- appears, indeed, to be the object of the sec- cate General Darmon described in Oleificio ond question. While the parties disagree as to Borelli as 'the right to an effective judicial whether the Council of State is obliged, in remedy'. H e defined the content of this prin- accordance with Oleificio Borelli, to exercise ciple as follows: '[an] individual who consid- jurisdiction in the main proceedings, there is, ers himself wronged by a measure which on the other hand, no genuine dispute as to deprives him of a right or advantage under whether the effect of the judgment of the Community rules must be able to have Council of State would be to reopen the access to a remedy against that measure and time-limits established by the Staff Regula- obtain complete judicial protection'. 12 In his tions; the matter appears to have been raised view, a national measure which definitively by the Council of State of its own motion in has an adverse effect on the legal situation of the order for reference. In these circum- the applicant must be capable of judicial stances, any ruling the Court would give on review at the national level. this question could not therefore be said to 'correspond to an objective requirement

33. The entirely hypothetical and even con­ 31. The basis for posing the first question trived nature of this question is further seems to me to be doubly hypothetical and apparent from the fact that, if the Court the underlying reasoning circular. Firstly, the were to answer it in the framework of the question referred assumes that, at some present request for a preliminary ruling, it future date, the applicant will commence an would in effect be encroaching on the juris­ action before the Court of First Instance for diction of the Court of First Instance to the annulment of the Commission's decision decide the same issue at first instance in any to appoint Mr Tanghe. This assumption, possible future dispute between the Com­ incidentally, further implies that she will, by mission and the applicant. The Court of First then, have complained unsuccessfully to the Instance in such a case would be able to Commission in accordance with Article 90(2) examine any ground properly submitted to it of the Staff Regulations. Secondly, it must be on which the validity of the Commission's assumed that, at the time of that action, she appointment decision is challenged. This will have succeeded in her action before the could include any allegation that the partici­ Belgian Council of State. However, the latter pation of the Member States in the pro­ hypothesis is, in turn, dependent on answers cedure for selecting the candidates was con­ favourable to her in respect of both of the trary to the Staff Regulations or to any questions referred. general principle of Community law, and that the validity of the Commission's decision was thereby affected; the question of Member State participation in the appointment procedure, which is not expressly foreseen in the Staff Regulations, is obviously very different from that of the substantive validity of Member State mea­ 32. The Council of State has thus made the sures which are required as part of a particu­ result of the case in the main proceedings lar Community decision-making procedure, depend on the effects of its as yet undeliv­ as in Oleificio Borelli. The validity of staff ered judgment on the application of provi­ appointments made by the Community sions of Community law which can only be institutions, and a fortiori the question of invoked if that judgment is favourable to the whether any such appointment may be con­ applicant. It is clearly established in the case- tested in possible future proceedings, are law of the Court that it may not provide matters assigned to the jurisdiction of the consultative opinions on general or hypo­ Court of First Instance, as the court thetical questions, or on questions which would not assist the national court in

'... whilst the Court of Justice must be able 37. Should the Court choose not to follow to place as much reliance as possible upon this analysis of the question of its jurisdic­ the assessment by the national court of the tion in the present proceedings, then I am of extent to which the questions submitted are the view that the answer to the first question essential, it must be in a position to make of the Council of State must be in the nega­ any assessment inherent in the performance tive. The applicant is here contesting two of its own duties in particular [in] order to decisions taken by national authorities, check ... whether it has jurisdiction. Thus the which are said to be preparatory to, and to Court ... cannot ... remain indifferent to the have rendered invalid, the Commission's assessments made by the courts of the Mem­ appointment of Mr Tanghe, exclusively with ber States in the exceptional cases in which a view to contesting that appointment. If the such assessments may affect the proper decision of a national court were to be con­ working of the procedure laid down by sidered to constitute such a new fact, the Article 177'. 16 applicant would be enabled to evade the time-limits established by the Staff Regula­ tions, the application of which, according to the settled case-law of the Court, is a matter of public policy. 1 8 Furthermore, as the 35. This appears to me to be just such an exceptional case where the referring court's assessment of the relevance of the question 17 — Ibid., paragraph 18 of the judgment. The English translation of this paragraph ends 'for purposes other than those appropriate for it'; I have taken the liberty of suggesting a more fluent rendition of this phrase. 16 — Case 244/80, cited in footnote above, paragraph 19 of the 18 — See, for example, Case 227/83 Moussis ν Commission [1984] judgment. ECR 3133, paragraph 12 of the judgment.

40. The referring court has explicitly stated 'To accept that in such circumstances the that the second question only falls to be con­ person concerned could challenge the imple­ sidered if the first question is answered in mentation of the decision in proceedings the affirmative. In view of my proposed before the national court on the ground that answer to the first question, and in line with the decision was unlawful would in effect the express indication of the referring court, enable the person concerned to overcome the I recommend that the Court not answer the definitive nature which the decision assumes second question.

19 — Case 125/87 Brown ν Court of Justice [1988] ECR 1619, 21 — Ibid., paragraph 18 of the judgment; sec also paragraphs 13 paragraph 13 of the judgment. to 26 of the Opinion of Advocate General Jacobs in that 20 — Case C-188/92 [1994] ECR 1-833. case.

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41. In the event that the Court considers applies by analogy to temporary staff by that it should none the less answer the sec- virtue of Article 11 of the Conditions of ond question, I am of the opinion that the Employment of Other Servants. She has supplementary request made by the Com- equally failed to show how Article 27 of the mission to the Member States to provide the Staff Regulations, on which she placed par- names of candidates for consideration as part ticular emphasis, should be interpreted as of the general recruitment procedure did not applying to temporary staff, or how the contravene the applicable provisions of equivalent provisions of the Conditions of Community law. In particular, the applicant Employment of Other Staff, in particular has not demonstrated any breach of Article 12(1), have been infringed. Article 11 of the Staff Regulations, which