C-389/98

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adopt a measure prescribed by the Staff tional qualifications and had sought annul- Regulations. The complaint must be lodged ment of the Commission's decision refusing within three months'. to appoint her to a grade higher than the starting grade.

Finally, Article 91(2) provides that '[a]n appeal [to the Court of First Instance]... In the judgment in Alexopoulou v Commis- shall lie only if the appointing authority has sion, the Court pointed out that the deci- previously had a complaint submitted to it sion to classify an official in a particular pursuant to Article 90(2) within the period grade, based on Article 31(2) of the Staff prescribed therein...'. Regulations, came within the scope of a 'wide discretionary power' of the adminis- tration. 5 However, it considered that the appointing authority was required in spe- cial circumstances, such as where a candi- date had exceptional qualifications, speci- 4. On 1 September 1983, the Commission fically to assess the possible application of adopted a decision on the criteria applic- that provision. 6 able to the grading and classification in step on recruitment 4 ('the decision of 1 Sep- tember 1983'). According to Article 2, first subparagraph, of that decision:

The Court stated that '[s]uch an obligation arises in particular where the specific needs of the department require the recruitment 'The appointing authority shall appoint the of a specially qualified official and there- probationary official to the starting grade fore justify recourse to Article 31(2) of the of the career bracket to which he has been Staff Regulations... or where the person recruited'. recruited possesses exceptional qualifica- tions and requests the application of those provisions'. 7

Consequently, the Court found that the This provision will have effect from decision appointing Mrs Alexopoulou was 5 October 1995 (date of the Court judg- vitiated by an error of law. The Commis- ment)'. sion had refused to classify the applicant at a higher grade solely because the decision of 1 September 1983 precluded such a possibility, without having specifically 7. The judgment in Alexopoulou v Com- assessed Mrs Alexopoulou's qualifications mission was seen by many Commission pursuant to Article 31(2) of the Staff Reg- officials as marking a significant change of ulations. direction in the case-law. In the months following its delivery, some 950 officials 10 filed requests for reconsideration of their classification in grade on the basis of Article 31(2) of the Staff Regulations. 6. With a view to complying with the More than 80 actions were then brought judgment in Alexopoulou v Commission, before the Court of First Instance. 11 the Commission amended its decision of 1 September 1983 by a second decision adopted on 7 February 1996 9 (hereinafter 'the decision of 7 February 1996') and When dealing with those cases, the Court published in Administrative Notices of of First Instance essentially distinguished 27 March 1996. Article 2 of the original two categories of action: 12 decision now reads as follows:

(a) actions brought by officials who had submitted requests for reclassification 'The appointing authority shall appoint a probationary official in the starting grade of the career bracket to which he is 10 — This figure is derived from the information which the recruited. Commission communicated to the Court of Justice in Case C-155/98 P Alexopoulou v Commission [1999] ECR I-4069: see footnote 9 of my Opinion of 25 March 1999 in that case. 11 — See point 9 of my Opinion in Case C-155/98 P Alexopou- 8 — Paragraph 24. lou v Commission. 9 — Annex 12 to the application filed by Mr Gevaert in Case 12 — See the 1998 Annual Report of the Court of Justice of the T-160/97. European Communities, pp. I l l and 117.

13 — See, in particular, orders of the Court of First Instance of 11 July 1997 in Case T-16/97 Chauvin v Commission [1997] ECR-SC I-A-237and II-681; of 21 September 1998 10. On 24 June 1996, i.e. shortly after in Case T-237/97 Progoulis v Commission [1998] ECR-SC I-A-521 and II-1569 (the appeal lodged by M r Progoulis publication of the decision of 7 February was dismissed by order of 18 November 1999 in Case C-431/98 P Progoulis v Commission [1999] ECR I-8319); of 12 October 1998 in Case T-235/97 Campali v Commis- sion [1998] ECR-SC I-A-577 and II-1731 (the appeal lodged by M r Campoli was dismissed by order of 30 April 14 — See, in particular, judgment of the Court of First Instance 1999 in Case C-7/99 P Campoli v Commission [1999] in Case T-12/97 Barnett v Commission [1997] ECR-SC I- ECR I-2679); and of 14 October 1998 in Case T-224/97 A-313 and II-863 and order of the Court of First Instance Martínez del Feral Cagigal v Commission [1998] ECR-SC of 13 February 1998 in Case T-195/96 Alexopoulou v I-A-581 and II-1741 (the appeal lodged by Mrs Martínez Commission [1998] ECR-SC I-A-51 and II-117 (the appeal del Peral Cagigal is examined in my Opinion of 28 M a r c h lodged by Mrs Alexopoulou was dismissed by the judg- ment in Case C-155/98 P Alexopoulou v Commission). 2000 in Case C-459/98 P Martínez del Peral Cagigal v Commission). 15 — Paragraphs 1 to 12.

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1996, the applicant submitted a request 15. By a document filed on 26 February pursuant to Article 90(1) of the Staff Reg- 1998, the Commission raised an objection ulations for reconsideration of his classifi- of inadmissibility pursuant to Arti- cation in grade. cle 114(1) of the Rules of Procedure of the Court of First Instance.

13. The applicant brought his action before the Court of First Instance on 23 May I I I— The contested order 1997. He claimed that the Court should annul the Commission's decision of 26 August 1996 rejecting his request for reclassification in grade. 16. Before the Court of First Instance, the applicant emphasised that his request for reclassification was not intended to call into question the appointing authority's decision on his initial classification. On the contrary, it was designed to secure the 14. On 14 November 1997, the Court of assessment of his qualifications with a view First Instance invited the parties to the to having his current classification proceedings, and also the parties to a reviewed. His request therefore related only number of other 'reclassification' cases, to to the possible application of Article 31(2) take part in an informal meeting with the of the Staff Regulations and, accordingly, Judge-Rapporteur. Following that meeting, most of the applicants designated Gevaert v Commission as a test case. 16 — Paragraphs 18 and 19 of the contested order.

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an improvement in his classification in of equal treatment enshrined in Article 5(3) grade following the decision of 7 February of the Staff Regulations. 21 1996.

17. In the contested order, the Court of First Instance held: The applicant maintained that, in those circumstances, there was no need to spec- ulate on the existence of a new fact which would permit the re-opening of the period for filing a complaint against his initial '32 It is settled case-law that the time-limits classification. 17 In any event, the decision set by Articles 90 and 91 of the Staff of 7 February 1996 did in fact constitute Regulations for submitting complaints such a material new fact. 18 and lodging appeals are a matter of public policy and are not subject to the discretion of the parties and the Court...

35 The Court considers that the specific 37 It is settled case-law that although, purpose of the applicant's request [for under Article 90(1) of the Staff Regu- reclassification] of 24 June 1996 was lations, any official may request that to challenge the conditions of his initial the appointing authority take a deci- recruitment, in particular his classifica- sion relating to him, that right does not tion in grade. It must be emphasised, in allow the official to circumvent the that regard, that it is clear from the time-limits laid down in Articles 90 wording of his request that the appli- and 91 for the lodging of a complaint cant was of the opinion that he had or an appeal by indirectly calling in "sufficient experience and skills to question by means of a request a request a review of [his] actual previous decision which has not been grade"... However, Article 31(2) of challenged within the period pre- the Staff Regulations relates to classifi- scribed. Only the existence of new cation in grade on initial recruitment. substantial facts may justify the sub- Consequently, even if the applicant's mission of a request for a review of request should, as he maintains, be such a decision... interpreted as seeking only to secure a review of his current classification and not his classification on recruitment, the fact remains that the request, being based on Article 31(2) of the Staff Regulations, necessarily sought to chal- lenge the conditions of his initial 38 At this stage of the argument, it is recruitment. therefore necessary to examine whether the applicant has established the exis- tence of a material new fact, allowing a request for reclassification to be sub- mitted after expiry of the time-limit for lodging a complaint.

it cannot constitute a new fact. It was IV — The appeal neither the purpose nor the effect of this decision to challenge administra- tive decisions which had become defi- nitive before it entered into force... 20. By this appeal, Mr Gevaert is asking the Court to set aside the contested order and give a ruling on the substance of the case. He is thus requesting the Court to annul the Commission's decision of 26 August 1996 rejecting his request for reconsideration of his classification in 40 In that context, the fact that 5 October grade and to order the defendant to pay 1995 (the date of the judgment in the costs of both sets of proceedings. Alexopoulou v Commission) was taken as the date on which the decision of 7 February 1996 was to take effect means that it applies only to officials recruited after 5 October 1995. As already stated (see paragraph 34 21. The Commission contends that the above), Article 31(2) of the Staff Reg- Court should dismiss the appeal and order ulations relates to classification in the applicant to pay the costs of these grade on initial recruitment.' proceedings.

22. In support of his appeal, the applicant puts forward three pleas in law: 18. The Court of First Instance also rejected the applicant's arguments alleging breach of the principle of care 22 and infringement of the principle of equal treatment. 23 — an error in the legal classification of his request for reclassification;

19. It therefore declared the applicant's action inadmissible. — an error in the legal classification of the decision of 7 February 1996 and infrin- gement of the principle of equal treat- 22 — Paragraphs 46 to 48 of the contested order. ment and of Article 5(3) of the Staff 23 — Paragraphs 41 to 45 of the contested order. Regulations;

24. The applicant maintains that the Court 25. It must be borne in mind that, under of First Instance made an error in its legal Article 51 of the EC Statute of the Court of classification of the facts when it held 24 Justice, an appeal is to be limited to points that his request for reclassification of of law. Furthermore, Article 112(1)(c) of 24 June 1996 sought to challenge the the Rules of Procedure of the Court of conditions of his initial recruitment. Justice states that an appeal is to contain the pleas in law and legal arguments which support the form of order which the applicant is asking the Court to make. According to settled case-law, the Court of Justice takes the view that: He reiterates that the request in issue did not seek to challenge his initial classifica- tion. On the contrary, its purpose was to secure an assessment of his qualifications with a view to having his current classifica- tion reviewed with effect from 5 October 1995. 'It follows from those provisions that an appeal must indicate precisely the contested

25 — The applicant cites the Opinion of Advocate General Reischl in Williams v Court of Auditors (Case 9/81 [1982] ECR 3301); the Opinion of Advocate General Trabucchi This error in legal classification had direct in Kortner and Others v Council, Commission and Parliament (Joined Cases 15/73 to 33/73, 52/73, 53/73, consequences since it led the Court of First 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73 [1974] ECR 177); and the judgments in Case 28/72 Tontodonati v Commission [1973] ECR 779, paragraphs 1 to 5; Case 127/84 Esly v Commission [1985] ECR 1437, paragraphs 10 to 12; and Williams v Court of 24 — At paragraphs 35 and 36 of the contested order. Auditors, cited above, paragraphs 12 to 15.

'The Commission maintains that by his More specifically, the Court of Justice request for reclassification and by the rejects as manifestly inadmissible appeals action to which it gave rise, the applicant sought to challenge his initial classification, 26 — Order of 26 April 1993 in C-244/92 P Kupka-Fhridi v adopted more than three months pre- ESC [1993] ECR I-2041, paragraph 9, emphasis added. viously. It infers that this challenge is out See also orders of 26 September 1994 in Case C-26/94 P X v Commission [1994] ECR I-4379, paragraph 12; and of of time in the absence of any new fact 17 September 1996 in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 37; and judg- which would permit the re-opening of the ments in Case C-73/95 P Viho v Commission [1996] period laid down in the Staff Regulations ECR I-5457, paragraph 25; Case C-401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 49; C a s e for filing a complaint, which had expired in C-8/95 P New Holland Ford v Commission ECR I-3175, paragraph 2 3 ; and Case C-185/95 P Bau- [1998] the meantime'. 30 stahleewebe v Commission [1998] ECR 1-8417, p a r a - g r a p h 113, and order of 20 J a n u a r y 2 0 0 0 in C a s e C-171/99 P Clauni and Others v Commission (not published in the ECR), paragraph 15. 2 7 — Order in Kupka-Floridi v ESC, cited above, paragraph 10. See, in addition to the judgments and orders cited in the previous footnote, orders of 17 October 1995 in Case C - 6 2 / 9 4 P Turner v Commission [1995] ECR I-3177, And, relying on a line of decisions identical paragraph 17; of 24 April 1996 in Case C-87/95 P to those which he invokes in support of this CNPAAP v Council [1996] ECR I-2003, paragraph 30; of 11 July 1996 in Case C-148/96 P(R) Goldstein v Commission [1996] ECR I - 3 8 8 3 , paragraph 2 4 ; of 12 December 1996 in Case C-49/96 P Progoulis v Commission [1996] ECR I-6803, paragraph 25; and of 2 9 — Order of 14 March 1996 in Case C-31/95 P Del Plato v 2 7 January 2000 in Case C-341/98 P Proderec v Commis- Commission [1996] ECR I-1443, paragraph 22, emphasis sion (not published in the ECR), paragraph 3 1 . added. 28 — Order in Proderec v Commission, cited above, para- 30 — Point 16 of M r Gevaert's observations on the plea of graph 3 1 . inadmissibility in Case T-160/97.

29. In the five pages of the appeal devoted There is therefore no need to consider to the second plea, the applicant merely whether or not there exists a new fact copied verbatim the arguments which he which would permit the re-opening of the had put forward before the Court of First period for filing a complaint against the Instance. 33 decision on initial classification. The only factors to be considered relate to whether the fact that new classification criteria have been defined is capable of adversely affect- ing the applicant and to the nature of the For the reasons stated in point 25 of this decision rejecting his request (see para- Opinion, I therefore propose that the Court graph 13 of the judgment in Williams v Court of Auditors)'. 31 32 — At paragraphs 39 to 45 of the contested order. 33 — Examination of the relevant pleadings does indeed show perfect correspondence between: — points 32 to 34 of the appeal and points 18 to 20 (first subparagraph) of the applicant's observations on the plea of inadmissibility in Case T-160/97; — point 36 of the appeal and point 21 of the observations 27. Since it merely reproduces the argu- on the plea of inadmissibility; — points 36 (second subparagraph) to 42 of the appeal ments put forward before the Court of First and points 22 to 25 of the observations on the plea of Instance, the first plea must be rejected as inadmissibility; — point 43 of the appeal and point 26 (second subpara- manifestly inadmissible. graph) of the observations on the plea of inadmissi- bility; — point 45 of the appeal and point 27 of the observations on the plea of inadmissibility; and — points 47 to 52 of the appeal and point 28 of the 31 — Ibid., point 17. observations on the plea of inadmissibility.

On the other hand, in paragraph 40 of the 31. It should be noted that, within the contested order, the Court of First Instance context of the first plea, the appellant did stated that 'the fact that 5 October 1995 not put forward any evidence from which it (the date of the judgment in Alexopoulou v might be concluded that the Court of First Commission) was taken as the date on Instance had erred in law in considering which the decision of 7 February 1996 was that his request for reclassification sought to take effect means that it applies only to to challenge the conditions of his initial officials recruited on or after 5 October classification. Moreover, in support of the 1995'. The applicant points out that, on the second plea, the applicant did not put date on which the decision of 7 February forward any argument capable of upsetting 1996 was adopted, the decisions on classi- the Court's finding that the decision of

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7 February 1996 did not constitute a review of the definitive decision on his material new fact capable of re-opening classification in grade following the expiry the periods laid down in the Staff Regula- of the three-month period prescribed by tions for lodging a complaint and bringing Article 90(2) of the Staff Regulations, it an action against the classification. As I see would not avail the appellant if the con- it, I must conclude that there is no new fact tested order were to be set aside on the enabling the applicant to challenge the point criticised in the present plea. appointing authority's decision of 18 Jan- uary 1995 on his initial classification.

34 — Order of 18 November 1999 in Progoulis v Commission, 35 — See, for example, Case C-35/92 P Parliament v Frederiksen cited above, paragraph 36, emphasis added. [1993] ECR I-991, paragraph 31.

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Conclusion

34. In the light of the foregoing considerations, I therefore propose that the Court should:

(1) dismiss the appeal;