C-434/98

2. In the present case, the facts and the arguments of the parties are set out only in 'An appeal may be brought before the Court of Justice ... against final decisions of the Court of First Instance ... * Original language: German. 1 —Judgment of 30 September 1998 in Case T-164/97 Busacca and Others v Court of Auditors [1998] ECR-SC I-A-565 and II-1699. 3 — Joined Cases C-432/98 P and C-433/98 P (pending before 2 — OJ 1995 L 280, p. 1. the Court).

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Such an appeal may be brought by any 6. The applicants contend that the Court of party which has been unsuccessful, in Justice should: whole or in part, in its submissions. How- ever, interveners other than the Member States and the Community institutions may bring such an appeal only where the decision of the Court of First Instance directly affects them.

— declare inadmissible the appeal brought by the Council of the Eur- opean Union seeking the setting aside With the exception of cases relating to of the judgment of the Court of First disputes between the Community and its Instance of 30 September 1998 in Case servants, an appeal may also be brought by T-164/97 Busacca and Others v Court Member States and Community institu- of Auditors; tions which did not intervene in the pro- ceedings before the Court of First Instance. ...'

— rule as appropriate on the procedural III— Forms of order sought by the parties objection;

Arguments of the parties 10. At the hearing the representative of the Council asked the Court of Justice, with reference to case-law, to develop the right of appeal by creative interpretation follow- ing the example of the Parliament's power 8. The Council takes the view that the to bring an action. 4 restriction on the right of appeal laid down in the third paragraph of Article 49 of the EC Statute relates only to actions of an individual nature brought by servants and does not apply to actions which concern the validity of measures of general applica- 11. The Kingdom of Spain, which has tion and in particular of regulations. The intervened in support of the Council, rationale underlying this provision is that supports this line of argument and con- institutions or Member States generally siders that a correspondingly strict inter- have no legitimate interest in review of pretation of the third paragraph of Arti- the treatment at first instance of the cle 49 of the EC Statute is necessary. internal disputes of other institutions. The Exclusion of the right of appeal of the contested judgment, however, concerns a institutions and Member States is justified general measure adopted by the Council. only as regards questions of lesser impor- The judgment is an important one for many tance which relate merely to individual reasons, in particular from an institutional disputes. At the hearing the representative perspective, even though it relates to a staff of the Spanish Government pointed out case. Furthermore, the lack of validity of that exceptions to general principles must the Council regulation is practically the be interpreted strictly. In the present case only object of the original action. the general principle is the unlimited right of the Council to bring an appeal, whereas the restriction of this power in staff cases constitutes an exception.

16. Moreover, the Council's submissions regarding the delimitation of its special right of appeal in staff cases in which it has not participated at least as an intervener would, in the view of the applicants, 14. They point out that the Council could, adversely affect legal certainty and protec- after all, have participated in the original tion of legitimate expectations. On the one action and thus preserved its rights. The hand, it is unclear who is intended to enjoy third paragraph of Article 49 of the EC this right of appeal. On the other, all staff Statute does not provide for any counter- cases concern at least one act of general exception to the restriction on the right of application, that is to say the Staff Regula- appeal — a right otherwise granted to the tions. privileged parties without the need for intervention in the original action — where staff cases concern the validity of measures of general application or have budgetary consequences. Moreover, such legal disputes occur frequently.

17. The applicants accuse the Council of putting forward its arguments merely to 15. In their view, the right of the institu- avoid the consequences of its own negli- tions and Member States to appeal outside gence. The Council must have been aware the narrow field of staff cases is already of the original action since the applicants unreasonable as it is not appropriate for a had requested access to the documents on third party to contest a judgment which is measures concerning termination of service accepted by all the parties to the proceed- ings. In that respect they rely on the Council's initial working documents on 5 — They refer to E. Van Ginderachter, CDE 1989, 62 (90 et seq.) and F. Picod 'Cour de Justice (Procédure)' No 138 in the rules concerning the right of appeal Encyclopédie Dalloz, Droit communautaire, vol. 2.

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is in turn an exception. That is because bringing a case before the Court of Justice under the second paragraph of Article 49 even where the parties to the proceedings of the EC Statute only parties and inter- before the Court of First Instance accept veners directly affected by a judgment can, the judgment. 6The extended power of in principle, bring an appeal. The very right Member States, the Council and the Com- of appeal granted therein to institutions mission to bring an action under the second and Member States which are interveners paragraph of Article 173 of the EC Treaty but not directly affected by the judgment of (now, after amendment, Article 230 EC) the Court of First Instance constitutes an reflects that task. alien element in the law governing appeals. The ability to appeal without intervening provided for in the third paragraph of Article 49 of the EC Statute goes one step further. This 'granting of a double privi- lege' — to use the applicants' words — is in turn limited by the exception in respect of staff cases. The question remains whe- ther the general principle that exceptions 25. However, as regards staff cases the must be interpreted strictly can be applied legislature expressly chose not to safeguard at all to this particularly complex situation that function by granting the institutions involving principle, exception and counter- and the Member States a double privilege, exception. In principle even a strict inter- but instead limited their ability to bring an pretation must be bound by the wording. action to the single privilege granted in the second paragraph of Article 49 of the EC Statute. The Court of Justice cannot reverse this express rule by means of a ideological interpretation merely on the basis of the circumstances of a single case.

tion as a result of changes to the system of 28. Accordingly, there is no cause to regard legal protection or the institutional balance the appeal of the Council as admissible of the European Community. Rather, it is contrary to the wording of the third the case that under Article 168a(2) of the paragraph of Article 49 of the EC Statute. EC Treaty (now Article 225(2) EC) it was and is the Council itself which has ulti- mately to decide, in its legislative role, as to the scope of its privileged right of appeal. In such a situation, creative judicial interpre- tation of the law is inconsistent with the institutional balance and the resulting V — Costs responsibility of the Council in its role as legislator. 29. Under Article 122 of the Rules of Procedure of the Court of Justice, the Court must make a decision as to costs where the appeal is unfounded. In the present case the Council is the unsuccessful party and the applicants have asked for it to be ordered to pay the costs. Pursuant to the first paragraph of Article 69(2) of the Rules of Procedure, that request must be 27. Furthermore, the applicants correctly complied with. These costs are limited to point out that the Council must have been the appeal. The Court of First Instance's aware that the case was pending before the judgment as to costs must apply to the costs Court of First Instance. Consequently, it of the original action. Under the first could have easily secured its right of paragraph of Article 69(4) of the Rules of appeal — as it did in Council v Chvatal Procedure, the Member States which have and Others — if it had also intervened in intervened in the proceedings must bear Busacca. The Council has given no reason their own costs. Since the Court of Auditors which would justify its failure to do so in asks to bear its own costs, this request must the present case. be complied with.

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