C-252/96

OPINION OF MR LÉGER — CASE C-252/96 P

OPINION OF ADVOCATE GENERAL LÉGER delivered on 2 April 1998 *

* Original language: French. 1 — Case T-140/94 Gutiérrez de Quijano y Llorens v Parliament [1996] ECR-SC II-689. 2 — OJ 1992 C 308 A, p. 8.

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PARLIAMENT v GUTIERREZ Y LLORÉNS

Communities (hereinafter the 'Staff Regula- tised in the Notice of Transfer. That applica- tions'), transfer procedures take precedence tion was refused, by letter from the Parlia- over competition procedures, and formally ment of 16 August 1993, on the grounds that repeated his request to be reinstated in that Mr Gutiérrez de Quijano y Lloréns's former institution. superiors were unable to approve his transfer both because, during the period when he was employed by the Parliament, his relations with his immediate superiors and with several of his colleagues were difficult, and because, 6. O n 15 March 1993, the Parliament pub- during the same period, he had frequently lished Notice of Vacancy N o 7281 concerning been called to account on disciplinary mat- post N o VI/LA/2759 for one Spanish- ters. language interpreter, to be filled by way of transfer within the institution, pursuant to Article 29(1 )(a) of the Staff Regulations (here- inafter 'the Notice of Vacancy'). O n the same date, the Parliament also published Notice of Vacancy N o PE/LA/91 concerning the same post N o VI/LA/2759, to be filled by way of 10. In his complaint lodged under Article transfer from other Community institutions, 90(2) of the Staff Regulations against that pursuant to Article 29(1)(c) of the Staff Regu- decision rejecting his request for a transfer, lations (hereinafter 'the Notice of Transfer'). Mr Gutiérrez de Quijano y Lloréns, alleging that the grounds given were unfounded, incon- sistent and invalid under the Staff Regula- tions, argued that the Notice of Transfer con- stituted the legal framework which the 7. The two notices were identical as regards Parliament had set for itself, such that his the duties and the qualifications and knowl- application for transfer could be refused only edge required of the candidates. on grounds of lack of the requisite qualifica- tions.

and then follow the procedure for competi- tions on the basis either of qualifications or The judgment of the Court of First Instance of tests, or of both qualifications and tests. Annex III lays down the competition proce- dure.

13. I will consider only those aspects of the judgment of the Court of First Instance which are of relevance to this appeal. The procedure may likewise be followed for the purpose of constituting a reserve for future recruitment.'

17. However, in paragraph 43 of the judg- ment, it pointed out that, in any event, it was 19. Having analysed the contested additional clear from the case-law of the Court of Jus- conditions, it concluded, in paragraph 46 of tice and the Court of First Instance that where the judgment, that the Notice of Transfer the appointing authority decides, as in this placed stricter conditions on participation in case, to pass from one stage of the recruit- the recruitment procedure for the post con- ment procedure to another, which follows it cerned than those set out in the Notice of according to the order of priority set out in Competition. Article 29(1) of the Staff Regulations, it must do so within the legal framework which it laid down for itself by means of the vacancy notice 'and ensure that the conditions set out in the aforementioned notice correspond to those set out in the notices relating to subse- quent stages and, in particular, as in the present case, in the Notice of Competition ...'. 4 20. The Court of First Instance concluded, in paragraph 46, that 'the appointing authority could no longer observe either the framework which it had initially decided to adopt by publishing, despite the order provided for in 18. In the present case, the Court of First Article 29(1) of the Staff Regulations, Notice Instance pointed out, in paragraphs 44 and 45 of Competition ... before publishing Notice of the judgment under appeal that comparison of Vacancy ... and Notice of Transfer ..., or the framework it subsequently chose by pub- lishing the two latter notices. The appointing authority made it impossible for those notices, 4 — The Court of First Instance referred, in that connection to the in so far as they referred to the same post, to judgment in Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 Van der Stijl and Cull- play their essential part, pursuant to Article tngton v Commission [1989] ECR 511, paragraph 52, according to which 'Any other interpretation would deprive Article 29 29(1) of the Staff Regulations, in the recruit- of the Staff Regulations of its effect, that provision requiring ment procedure, namely that of informing the institutions to consider whether a post can be filled inter- nally before they organise an open competition. If it were open to the institutions to change the conditions of participa- tion from one stage of the procedure to the next, in particular by making them less strict, they would be at liberty to orga- nise external recruitment procedures without having to con- 5 — See point 8 of this Opinion on the differences between the sider internal candidates.' notices.

' N o new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.' 6 23. It therefore granted the application of Mr Gutiérrez de Quijano y Lloréns, holding in paragraph 51 of the judgment that: 'in those 6 — This wording is identical to that of Article 42(2) of the Rules circumstances, the decision of the Parliament of Procedure of the Court of Justice.

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PARLIAMENT v GUTIÉRREZ Y LLORÉNS

25. The appellant argues that, in annulling of the grounds/a summary of the pleas in law the Parliament's decision on the ground that on which the application is based'. 7 the wording of the Notice of Transfer and that of the Notice of Competition were not the same, when that plea was never raised by Mr Gutiérrez de Quijano y Lloréns, the Court of First Instance had, of its own motion, after putting a number of questions to the Parlia- ment, introduced a new plea in the course of 29. Similarly, new pleas, which may not be proceedings. introduced in the course of proceedings except under certain circumstances, can only be put forward by the parties, as both the wording and the rationale of the prohibition confirm.

26. That argument, alleging breach of Article 48(2) by the Court of First Instance, cannot be accepted.

30. Article 48 as a whole refers to the parties. Paragraph 1 provides: 'In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in 27. That provision, which falls within Chapter offering it.' 8 The second subparagraph of 1 of Title 2 of the Rules of Procedure of the paragraph 2 is even more illuminating, pro- Court of First Instance, is one of the rules of viding, as it does: 'If in the course of the pro- written procedure applicable before that cedure one of the parties puts forward a new Court. The prohibition on the introduction plea in law which is so based, the President of new pleas which it contains can only be may, even after the expiry of the normal pro- read as being intended for the parties and cedural time-limits ... allow the other party cannot apply to the Court of First Instance time to answer on that plea.' 9 itself.

of the dispute, which cannot, without frus- 33. I conclude that the appellant cannot rely trating the rights of the defence, be altered by on a breach by the Court of First Instance of the introduction of new pleas in the course of Article 48(2) of its Rules of Procedure, proceedings. Moreover, where, by 'way of claiming that it introduced a new plea in the exception, it does authorise the introduction course of proceedings. of new pleas in the course of proceedings, Article 48(2) concerns new pleas in fact or in law in support of the claims formulated in the originating application. Thus the Court of Justice has held, in connection with Article 42(2) of its Rules of Procedure, which is 34. However, it is possible to construe the identical to the article in question here, that subject of the appeal differently, despite the 'that provision... allows an applicant, in excep- way it has been formulated. In criticising the tional circumstances, to raise fresh issues in Court of First Instance for basing its judg- order to support conclusions set out in the ment on the fact that the contested notices of document instituting the proceedings. It does transfer and competition were not the same, not in any way provide for the possibility of when that fact was not relied on by the appli- an applicant's introducing fresh conclusions cant, it is possible that the Parliament intended ..." 10 to point out that the Court of First Instance has to remain within the strict confines estab- lished by the parties. 11

35. Clearly the court must only rule on the application of the parties. As I have pointed 32. The function of adjudication entrusted to out, it is for them to define the framework of it automatically makes the court a third party their dispute, and the court cannot, as a matter in relation to the dispute brought before it. of principle, rule on matters other than the claims made, nor, of course, rule in complete disregard of the dispute as defined in the application initiating proceedings.

task of juris dictio requires it to be able to 39. However, it does not seem to me that the apply to the facts put before it by the parties approach of the Court of First Instance in the relevant rules of law for the solution of this case should be construed in the light of the dispute. It cannot confine itself to the this possibility of raising a plea of its own arguments put forward by the parties in sup- motion, contrary to what the Parliament port of their claims or it may be forced to appears to claim. 14 The finding that the con- base its decision on erroneous legal consider- ditions of the contested notices were not the ations. same cannot be deemed to be equivalent to a plea. As is clear from the judgment under appeal, it is, rather, a case of the development of an argument in support of a plea raised by the applicant: that of breach of Article 29(1) of the Staff Regulations. 15 37. This is why the rules of procedure offer the court the possibility of seeking the best possible solution in various ways while remaining within the framework of the dis- pute submitted to it. It was, in fact, only in the course of its con- sideration of the plea of breach of that article that the Court of First Instance came to con- sider whether the conditions set out in the 38. Thus the court may, under certain cir- notices in question were the same. cumstances, raise of its own motion a plea which has not been put forward by a party.

41. Finally, the Court of First Instance cannot The absence of any act adversely affecting the be criticised for putting questions to the par- official and the lack of any interest in bringing ties as this is one of the measures of organisa- proceedings tion of procedure available to it under Article 64 of its Rules of Procedure. The purpose of such measures, according to Article 64(1) is 'to ensure that cases are prepared for hearing, 44. In its appeal, 18 the Parliament also claims procedures carried out and disputes resolved that if the plea alleging breach of Article 48(2) under the best possible conditions.' Similarly, must be declared inadmissible, the argument pursuant to Article 29 of the EC Statute of that the notices were not the same raised by the Court of Justice, applicable to the Court the Court of First Instance ought to be of First Instance by virtue of Article 46(1) of declared inadmissible because there is no act that Statute: 17 'During the hearings the Court adversely affecting the official concerned and may examine ... the parties themselves ...'. he has no interest in bringing proceedings. It takes the view that, since Mr Gutiérrez de Quijano y LIoréns did not apply for Com- petition N o PE/161/LA, the wording of the Notice of Competition cannot be considered to have affected him adversely. Moreover, the 42. The Court of First Instance might have fact that he did not apply for the competition been open to criticism, however, if it had also demonstrates that he has no interest in considered the question whether the notices bringing proceedings. at issue were the same in the course of con- sidering the plea of breach of Article 29 of the Staff Regulations, without the parties having expressed any view on this point. 45. It should be borne in mind, first, as Through its questions the Court of First regards the lack of any act adversely affecting Instance elicited an opinion from the Parlia- the official concerned, that the act complained ment and thus ensured respect for the prin- of before the Court of First Instance by ciple of audi alterem partem which it might Mr Gutiérrez de Quijano y LIoréns was not otherwise have been criticised for breaching. the Notice of Competition but the decision rejecting his candidature in respect of the Notice of Transfer. It is thus only in connec- tion with that notice that the requirement for an act adversely affecting an official should be 43. I must therefore conclude that the Court assessed. of First Instance is not open to the criticism of having ruled in breach of Article 48(2) nor of having contravened the applicable Rules of 46. It should also be borne in mind that, as Procedure in basing its reasoning on the the Court of First Instance found: '... [since] answers given to the questions which it had the applicant's candidature was considered on put to the parties in the course of its exami- the basis of a Notice of Transfer laying down nation of the plea raised in support of annul- stricter conditions than the Notice of Com- ment. petition,' 19 '... the rejection of the applicant's

candidature was irregular, being in breach of case 15 March 1993), the existence of that the provisions of Article 29(1) of the Staff Notice of Transfer was not yet known. Regulations which require, in accordance with the case-law on the subject... that the condi- tions laid down by the notices corresponding to the different stages of the recruitment pro- cedure remain the same.' 20 Thus it cannot The differences between the Notice of Transfer reasonably be argued that the wording of the and the Notice of Competition Notice of Competition did not adversely affect Mr Gutiérrez de Quijano y Lloréns when it is precisely because its wording was not the same as that of the Notice of Transfer that the rejection of his candidature was held to be irregular. 48. Finally, in the event that the Court of Justice should none the less consider 'the plea raised in support of annulment made by the Court of First Instance to be admissible' and that there is no problem of admissibility because of the absence of an act adversely 47. N o r can the Parliament's argument affecting the official concerned or of an interest pointing to Mr Gutiérrez de Quijano y in bringing proceedings, the Parliament reit- Lloréns's failure to apply for the competition erates, 21 by reference to an annex to the to prove his lack of interest in bringing pro- appeal, the arguments p u t before the Court ceedings be accepted. As the Court of First of First Instance, according to which the dif- Instance points out at paragraph 41 of the ferences between the notices, which are purely judgment: 'Article 29(1)(a) of the Staff Regu- differences of wording, played no role when lations requires the appointing authority to the candidature of Mr Gutiérrez de Quijano consider as a priority the possibilities of pro- y Lloréns was examined. motion and transfer within the institution before proceeding to one of the subsequent stages laid down by that article, that is to say, in order, consideration of the possibility of organising an internal competition, reviewing requests for inter-institutional transfer and, if 49. As the Court has consistently held, such necessary, organising an open competition ...' a line of argument, which consists in simply It follows that the Parliament cannot require repeating or reproducing verbatim the pleas a candidate for a transfer to sit a competition, in law and arguments already submitted to the results of which are not supposed to be the Court of First Instance, cannot be upheld, taken into consideration until examination of since it merely seeks, in reality, reconsidera- the candidatures received in response to the tion of the application submitted before the Notice of Transfer has been completed, when, Court of First Instance, which, under Article at the time of the deadline for the submission 49 of the E C Statute of the Court of Justice of applications for that competition (in this does not fall within the jurisdiction of the case 25 January 1993), which predates the Court. 22 publication of the Notice of Transfer (in this

(1) dismiss t h e appeal;

(2) o r d e r the E u r o p e a n P a r l i a m e n t t o p a y the costs.

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