C-155/98

Facts and procedure 2. The action brought before the Court of First Instance on the substance of the case related to the application of Article 31(2) of the Staff Regulations of Officials of the 4. The facts of the case, as established in its European Communities ('the Staff Regula- absolute discretion by the Court of First tions'), which concerns the classification in Instance, 3are as follows: the appellant, grade of officials. who had initially been recruited by the Commission on 16 March 1989 as a mem- ber of temporary staff in Grade A 7, Step 1, was, after passing an internal com- petition, appointed as a probationary offi- 3. According to that provision the appoint- cial in Grade A 7, Step 5, with effect from ing authority may make exceptions to the 1 December 1993. principle laid down in Article 31(1) of the Staff Regulations whereby officials in Cate- gory A or the Language Service are to be recruited to the starting grade of their category or service. Those exceptions are provided for within the limits of a propor- 5. Since the appellant received no reply tion of the posts to be filled, without any when she challenged that decision of clas- sification in grade, she sought to have the decision annulled by the Court of First * Original language: French. Instance, which, by judgment of 5 October 1 — Order of 13 February 1998 in Case T-195/96 Alexopoulou 1995 ('Alexopoulou I'), 4 granted her v Commission [1998] ECR-SC II-117. 2 — Article 111 of the Rules of Procedure reads as follows: application. 'Where it is clear that the Court of First Instance has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court of First Instance may, by reasoned order, after hearing the Advocate General and 3 — Paragraphs 1 to 13 of the contested order. without taking further steps in the proceedings, give a 4 — Case T-17/95 Alexopoulou v Commission [1995] ECR-SC decision on the action'. II-683.

9. It should be noted that that judgment, which was interpreted by many officials as a modification of the case-law on the 7. The Court of First Instance subsequently application of Article 31(2) of the Staff dismissed the Commission's argument that, Regulations, has led to a very large number by decision of 1 September 1983 on the of requests for reclassification. 9 Following criteria applicable to appointment in grade the decisions taken on the complaints filed and classification in step upon recruitment within the time-limits, some 80 actions ('the decision of 1 September 1983'), it had were brought before the Court of First waived the discretion conferred upon it by Instance.

5 —Case C-298/93 P Klinke v Court of Justice [1994] ECR 8 — Ibid., paragraph 24. I-3009. 9 — Approximately 950, according to a Commission document 6 — Case 146/84 [1985] ECR 1723. appended to Ms Alexopoulou's application in Case 7 — Paragraph 21 of the judgment in Alexopoulou I. T-195/96.

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The 'pilot' judgment in Barnett v Commis- The contested order sion 10

12. That judgment adds, I believe, only one element to the analysis of Alexopoulou I: any exceptional qualifications that a candi- date may possess must be assessed 'not by 15. The contested order stems from the comparison with the population as a action brought by the appellant against the whole, but in relation to the average level Commission decision rejecting her com- of qualification of successful candidates in plaint against that classification decision, competitions, who represent a group of since she sought to take further steps in the people who are already very rigorously proceedings despite the fact that the Regis- selected...'. 12 trar of the Court of First Instance had communicated to her a copy of the judg- ment in Barnett, delivered during those 10 — Case T-12/97 [19971 ECR-SC II-863. 11 — Ibid., paragraph 60. second Alexopoulou proceedings. 12 — Ibid., paragraph 50, which refers to Klinke v Court of justice and Alexopoulou I, cited above, pointing out that: 'In any event, a given level of practical experience cannot confer on the person possessing it a right to be appointed 13 — Decision published in Administrative Notices of 27 March at the higher grade of the career bracket concerned...'. 1996.

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decision, does not constitute such a mea- First ground of appeal: defects in the sure, it is not actionable. statement of reasons and infringement of Article 111 of the Rules of Procedure of the Court of First Instance

25. The first part of this ground of appeal 22. Lastly, the appellant's claim for com- alleges that the Court of First Instance pensation for material damage was dis- failed to state the reasons, in paragraph 57 missed as manifestly without any founda- of the contested order, for which the tion in law, in particular since 'the appli- appellant's action was 'manifestly' unfoun- cant's application is wrongly based on the ded in law or inadmissible. assumption that she was entitled to be classified in a higher grade when she was recruited'. 20

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and the Court of First Instance which, rejecting the complaint of 3 April 1996 was suffice it to say, had already been referred subsequently rejected as 'manifestly inad- to at length in Alexopoulou I, delivered as a missible', 24 that was not without the result of the appellant's first action. reasons for doing so being stated. The Court of First Instance was in fact careful to refer to the terms of the case-law on which it based its assessment. 25

The Court of First Instance was therefore correct in taking the view that the appellant was already perfectly aware of the inter- pretation it would give to Article 31(2) of 30. Finally, the application for compensa- the Staff Regulations (first part of the plea), tion for material damage was rightly dis- since it was already clear from, inter alia, missed as manifestly lacking any founda- Alexopoulou I. In those circumstances, the tion, in particular as being 'founded, Court of First Instance does not seem to wrongly, on the assumption that [the have been unjustified in ruling that the first appellant] was entitled to be classified in part of that plea was 'manifestly' lacking a higher grade when she was recruited', 26 any foundation in law. given that the Court of First Instance had previously demonstrated, in the contested order, that the appellant was not entitled to be so classified. 27

The second part of the plea, alleging infringement of the Commission decision of 1 September 1983, was rejected for the same reasons, since the Court of First Instance stated, in essence, that the amend- 31. These observations show that the ment of the contested decision amounted, Court of First Instance cannot be accused in fact, to merely taking into account the of not having 'stated the reasons for which rule in Alexopoulou I. The appellant, who the appellant's application was 'manifestly' was perfectly aware of that case-law since unfounded in law or inadmissible. she had initiated it, could not be unaware of the justification for that amendment. Here again, the Court of First Instance does not appear to have been wrong to reject that part of the plea as 'manifestly' lacking any foundation in law. 32. The first part of the first ground of appeal must therefore be dismissed.

34. After questioning the point of that ground of appeal — inasmuch as the appli- cation was ultimately dismissed in any case, whether as inadmissible or as unfoun- ded — the Commission points out that 38. It should be sufficient to note in this the alternative wording of paragraph 57 is connection, as the Commission did, 29 that intended solely to take account of the fact the Court of First Instance is free, in that the two reasons for dismissing the accordance with Articles 17 to 19 of its application were given in turn by the Court Rules of Procedure, to decide that a judge of First Instance, according to the pleas put be designated to perform the function of forward. Thus the Court of First Instance Advocate General in a particular case. The dismissed as manifestly lacking any foun- wording of Article 111 cannot be inter- dation in law the first part of the plea for preted as meaning that there is an obliga- annulment (paragraph 44), the second part tion to designate an Advocate General, but of the plea for annulment (paragraphs 46 merely that his opinion should be taken and 47) and the claim for compensation into account where, in an appropriate case, (paragraph 56); on the other hand it he has been designated by the Court of First dismissed as inadmissible the alternative Instance, in accordance with its discretion- claim for annulment examined in para- ary power. The second subparagraph of graph 50. Article 2(2) of the Rules of Procedure expressly confirms, moreover, that: 'Refer- ences to the Advocate General in these Rules shall apply only where a Judge has been designated as Advocate General'. 35. We can only endorse the Commission's interpretation of the order of the Court of First Instance: paragraph 57 of the order simply summarises all the reasons pre- viously given by the Court of First Instance for dismissing the application and charac- terised in turn as manifestly inadmissible or 39. In any event, counsel for the appellant unfounded. stated, at the hearing before this court, that his client had decided not to rely on this part of the first ground of appeal.

40. In the fourth part of this ground of grade of the career bracket, the Court of appeal the appellant accuses the Court of First Instance refers, in paragraph 43 of the First Instance of dealing jointly, in para- contested order, to consistent case-law graph 43, with the matter of classification according to which 'even where newly- of officials and that of their promotion, recruited officials fulfil the conditions for without stating the reasons for so doing. classification in the higher grade, they do The appellant claims that while promotion not thereby have a personal right to such is not in any way a personal right for classification'. 31 officials, since it is determined on the basis of merit, their classification is, on the other hand, subject to far less flexible criteria. Thus by failing to explain in what respect the classification rules are applicable to the promotion rules, although they are based on different provisions, the order contains a 44. That assessment by the Court of First defective statement of grounds. Instance is the culmination of its reasoning concerning interpretation of Article 31(2) of the Staff Regulations. In taking the view that the appointing authority is not in any way required, on the basis of that provi- sion, to accede to the request of officials 41. By alleging that the Court of First who invoke it in order to classify them in a Instance has confused the separate concepts higher grade, the Court of First Instance used in the Staff Regulations of classifica- cannot be accused of confusing the areas of tion and promotion and has thus erro- recruitment and promotion. While it is in neously cited in support of a conclusion fact true that classification is normally of regarding classification the case-law con- an automatic nature and precludes any cerning promotion, the Commission con- subjective assessment by the appointing siders that the appellant is distorting the authority (Article 31(1) of the Staff Regu- meaning of the order. 30 lations), if that authority is obliged, in the light of special circumstances, to make an assessment of whether Article 31(2) of the Staff Regulations applies, the final decision which it will take in this connection is a 42. The Commission's view is one which matter for its absolute discretion, as the we can only endorse. Court of First Instance pointed out in its order. In the context of that absolute discretion, the appointing authority obviously has far greater latitude than with regard to 'traditional' recruitment, which is 43. In order to reject the appellant's argu- similar to the latitude it enjoys with regard ment that the appointing authority com- to promotion. The Court of First Instance mitted a manifest error of assessment in was therefore quite correct in considering it refusing to appoint her at Grade A 6 and that it could essentially exercise its discre- tion only by appointing her at the higher 31 — Here reference is made, with regard to promotion, to the judgments in Case 123/75 Küster v Parliament [1976] ECR 1701, paragraph 10; Case C-119/94 P Coussios V Commission [1995] ECR I-1439, paragraph 19; and Case T-142/95 Detvaux v Commission [1997] ECR-SC II-1247, 30 — Ibid., point 12. paragraph 39.

47. As the Commission points out, 32this ground of appeal in fact seeks not to make a legal criticism of the contested order but to call into question existing case-law, which the Court of First Instance has been 50. Therefore, while acknowledging that content to apply without attaching, con- the Commission has the option to resort to trary to what the appellant alleges, any Article 31(2) of the Staff Regulations 'in additional condition to the application of exceptional cases, [for] an exceptional the article in question. candidate', in paragraph 37 of the con- tested order, the Court of First Instance merely applied the existing case-law of the Court of Justice and the Court of First Instance and cannot be accused of having 48. It should be sufficient, for example, to attached conditions to the application of point out that it emerges from Alexopoulou that provision.

32 — Point 13 of the response. 33 — Paragraph 21 of the judgment in Alexopoulou I.

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51. The second ground of appeal cannot 54. The third ground of appeal cannot therefore be upheld. therefore prevail.

53. In my view, without its being necessary to undertake a particularly detailed exam- 56. The ground of appeal can be broken ination of this ground of appeal, the way in down into three parts. which it is worded shows why it should be dismissed. According to Article 51 of the EC Statute of the Court of Justice: 'An appeal to the Court of Justice shall be 57. By the first part, the Court of First limited to points of law'. It is therefore Instance is accused of having harmed the irrelevant, in the context of an appeal, to legitimate expectations of the appellant. raise the question of the consultation This complaint is particularly well foun- asserted, since it seeks, in the appellant's own words, to ascertain the accuracy of the facts on the basis of which the contested 34 — Letter from the Registrar of the Court of First Instance to decision was taken. These are matters the appellant dated 11 November 1997 (Annex 3 to the appeal). within the absolute discretion of the Court 35 — Page 18 of the appeal. of First Instance. 36 — Annex 6 to the appeal.

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ded, the appellant adds, because, in order eral, allow the other party time to to avoid exposing itself to this ground of answer on that plea.' appeal, the Court of First Instance could have delivered a reasoned order. She con- siders that 'the judicial value of a decision taken by the Registrar is particularly open to this kind of criticism'. 37

59. Finally, the Court of First Instance is accused, in the third part, of infringing the 58. The second part seeks a declaration third subparagraph of Article 48(2) of its that there has been an infringement of Rules of Procedure by failing to give a Article 48(1) and (2), first and second ruling on that point. The text in question subparagraphs, of the Rules of Procedure states that: 'Consideration of the admissi- of the Court of First Instance, which state bility of the plea shall be reserved for the that: final judgment'.

mission points out, 3 8 a 'supplementary to the Registrar of the Court of First pleading'. Instance, 3 9 which deals specifically with 'Non-acceptance of documents and régu- larisation' and, in paragraph 2, expressly provides for the Registrar's power in such situations: 'The Registrar shall refuse to register pleadings or procedural documents 62. The invitation from the Registrar of the which are not provided for by the Rules of Court of First Instance to lodge observa­ Procedure. If in doubt the Registrar shall tions in fact related only to 'the steps to be refer the matter to the President in order for taken in the proceedings in the light of [the] a decision to be taken'. judgment [in Barnett]' and was not a request for supplementary observations seeking to present new pleas in law. In essence, the step taken by the Registrar of the Court of First Instance was aimed at sounding out the appellant in order to 64. The first part of this last ground of determine whether she intended to continue appeal cannot therefore reasonably suc- with her action, after taking cognisance of ceed. the Barnett judgment, which had been delivered in a case that was similar to hers, or whether she intended, for example, to request that it be suspended if an appeal were brought against that judgment. The 65. With regard to the second part, we take Court of First Instance cannot therefore be this to mean that the Court of First Instance accused of betraying her legitimate expec­ misinterpreted Article 48(2) of the Rules of tations by inviting her to submit observa­ Procedure by refusing to take account of tions and subsequently rejecting them, the new pleas in law put forward by the given that, as the Registrar informed the appellant, despite the fact that those pleas appellant, whilst she was asked to give her were prompted by the delivery of the views on the 'steps to be taken in the judgment in Barnett, a matter of law or of proceedings', she submitted observations fact which came to light in the course of the 'on the substance of the case'. procedure and was such as to justify, in accordance with the aforementioned provi- sion, that those new pleas in law be taken into account.

69. The Court of Justice does not, it is true, rule out the possibility that certain judg- ments may exhibit the character of matters coming to light in the course of the procedure, such as to justify the presenta- 72. In the case with which we are dealing, tion of new pleas in law. the disputed judgment in Barnett, which was delivered in an action for annulment, is indeed to be seen as one of those judgments 'confirming the validity of an act of the Community institutions'. As I have pointed out, 43 the Court of First Instance, applying Alexopoulou I, concluded that, in the 70. However, in the case-law of the Court, circumstances of the case, the appellant's such a possibility concerns a priori only application for annulment of the appoint- judgments of annulment and their effects with regard to persons directly concerned: 'the Court has consistently held... that a 41 — Case 125/87 Brown v Court of justice [1988] ECR 1619, paragraph 13. See also the order in Chauvin, which refers judgment annulling an administrative mea- to settled case-law of the Court of Justice: Case 43/64 Müller v Councils of the EEC, EAEC and ECSC [1965] sure can constitute a new factor only as ECR 385, 397; Case 34/65 Mosthaf vCommission of the EAEC [1966] ECR 5 2 1 , 5 3 1 ; and the order in Case T-131/95 Progoulis v Commission [1995] ECR-SC II-907, paragraph 36.

40 — See the order in Case T-16/97 Chauvin v Commission 42 — Judgment in Case T-521/93 Atlanta and Others v EC [1997] ECR-SC II-681, paragraphs 39, 43 and 45, which [1996] ECR II-1707, paragraph 39, which refers to the refers in particular to the judgment in Case C-403/85 rev. judgment in Case 11/81 Durbeck v Commission [1982] Ferrandi v Commission [1991] ECR I - 1 2 1 5 , p a r a - ECR 1251, paragraph 17. graph 13. 4 3 — Point 11 of this Opinion.

77. Since I have proposed that the Court reject the grounds of appeal put forward by the appellant, there is no need to adjudicate on the application for damages made by the 74. Since the appellant cannot rely on the appellant. delivery of the judgment in Barnett as constituting a new matter within the mean­ ing of Article 48(2) of the Rules of Proce­ dure of the Court of First Instance, the second part of this final ground of appeal must be dismissed. 78. Under Article 70 of the Rules of Pro­ cedure of the Court of Justice, the normal rule in proceedings between Community institutions and their servants is that the institutions are to bear their own costs. However, according to the second para­ graph of Article 122 of those Rules of 75. With regard to the last part of the final Procedure, that rule is not to apply to ground of appeal, I consider that there is no appeals unless they are brought by institu­ need to reply to it given the response which tions. The general rule laid down in Arti­ I suggest that the Court should give to the cle 69(2) of the Rules of Procedure should arguments put forward in support of the therefore be applied and the appellant first and second parts of the final ground of should be ordered to pay the costs of the appeal examined above. appeal.

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Conclusion

79. For the foregoing reasons I suggest that the Court of Justice:

(1) dismiss the appeal; and