C-459/98

MARTÍNEZ DEL PERAL CACICAL V COMMISSION

OPINION OF ADVOCATE GENERAL LÉGER delivered on 28 March 2000 1

1. This appeal relates to one of the series of ('the Staff Regulations') governs the classi- Community staff actions brought in fication of staff on recruitment. response to the judgment of the Court of First Instance of 5 October 1995 in the case of Alexopoulou v Commission. 2

Article 31(1) provides that the candidates selected by the institutions are to be appointed to the starting grade of their Mrs Martinez del Peral Cagigal (otherwise category or service. Article 31(2) allows the referred to as 'the appellant' or 'the appli- appointing authority to make exceptions to cant'), an official of the Commission, is that provision for up to a certain propor- asking the Court to set aside the order of tion of the posts to be filled. the Court of First Instance of 14 October 1998 3 in so far as it declared inadmissible the action she had brought against the Commission's decision rejecting her request for reconsideration of her classification in grade. 3. Articles 90 and 91 of the Staff Regula- tions concern the remedies available to staff.

I — Legal background and facts 4 Article 90(1) provides that '[a]ny person to whom these Staff Regulations apply may submit to the appointing authority a 2. Article 31 of the Staff Regulations of request that it take a decision relating to Officials of the European Communities him'.

1 — Original language: French. 2 — Case T-17/95 [1995] ECR-SC I-A-227 and II-683 ('the judgment in Alexopoulou v Commission'). 3 — Case T-224/97 Martinez del Peral Cagigal v Commission Article 90(2) states that '[a]ny person to [19981 ECR-SC I-A-581 and II-1741 ('the contested order'). 4 — For a fuller account of the legal background and facts of the whom these Staff Regulations apply may case, reference should be made to my Opinion of 28 March submit to the appointing authority a com- 2000 in Case C-389/98 P Cevaert v Commission [2000] ECR I-65, at p. I-67. plaint against an act adversely affecting

This provision will have effect from 5 October 1995 (date of the Court judg- 5. In the judgment in Alexopoulou v Com- ment)'. mission, the Court of First Instance held that that decision was incompatible with Article 31(2) of the Staff Regulations in so 5 — Paragraph 24.

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I I — Facts and procedure 11. The applicant brought her action before the Court of First Instance on 29 July 1997. She claimed that the Court should annul the Commission's decision of 24 October 1996 rejecting her request for 7. It follows from the contested order 6 that reconsideration of her classification in the applicant was appointed on 9 Novem- grade. ber 1993 as a probationary official at the Commission and classified in grade A 7, step 1. By decision of 26 November 1993, the appointing authority established her classification as grade A 7, step 3. In support of her action, the applicant put forward five pleas in law, alleging respec- tively failure to have regard to the case-law relating to the existence of new facts, infringement of Article 176 of the EC 8. On 21 June 1996, i.e. shortly after Treaty (now Article 233 EC), breach of publication of the decision of 7 February the principle of equal treatment, breach of 1996, the applicant submitted a request the principle of care and failure to state the pursuant to Article 90(1) of the Staff Reg- reasons on which the contested decision ulations for reconsideration of her classifi- was based. cation in grade with effect from the date on which she took up her post.

12. By a document lodged on 24 October 1997, the Commission raised an objection of inadmissibility pursuant to Arti- 9. On 24 October 1996, the Commission cle 114(1) of the Rules of Procedure of rejected that request on the ground that it the Court of First Instance. had been submitted more than three months after the decision on initial classi- fication taken in respect of the applicant.

7 February 1996 constituted a material On the basis of the judgments in Blomefield new fact which would permit the re-open- v Commission 11 and Williams v Court of ing of the period for submitting a com- Auditors, 12 the applicant also maintained plaint. 7 that the decision of 7 February 1996 con- stituted a material new fact which would permit the re-opening of the periods laid down by Articles 90 and 91 of the Staff Regulations for submitting a complaint and bringing an action. She stated that in 13. On 14 November 1997, the Court of Valentini v Commission 13 and Mogensen First Instance invited the parties to the v Commission 14 the Court of Justice had proceedings, and also the parties to a described the Commission's decisions of number of other 'reclassification' cases, 8 6 June 1973 and 1 September 1983 on staff to take part in an informal meeting with the classification criteria as 'substantial new Judge-Rapporteur. Following that meeting, facts'. In those circumstances, the applicant most of the applicants designated Gevaert v was unable to understand why the decision Commission 9 as a test case. However, the of 7 February 1996 could not constitute a applicant stated that she did not wish to new fact. 15 take part in that agreement and that she intended to pursue her own action.

The applicant further maintained that, by refusing to reconsider her classification in grade, the Commission had breached its duty of care with regard to its officials 16 and infringed the principle of equal treat- I I I— The contested order ment enshrined in Article 5(3) of the Staff Regulations. 17

27 The Court reiterates that, as the Com- munity judicature has already held, an official cannot be permitted to chal- lenge the conditions of his initial 31 The principle established in Williams v recruitment once that recruitment has Court of Auditors cannot be applied in become definitive... Only the existence this case. On that point, it is sufficient of material new facts can justify the to observe that, unlike the provision submission of a request for reconsi- examined in that case, Article 31(2) of deration of a decision which has not the Staff Regulations does not contain been contested within the periods laid a rule intended to apply to all staff... down by Articles 90 and 91 of the Staff Regulations...

18. By this appeal, Mrs Martínez del Peral Cagigal is asking the Court to set aside the contested order and to adjudicate on the substance of the case. She is requesting the 35 As regards the applicant's argument Court to annul the Commission's decision that the Commission had failed to of 24 October 1996 rejecting her request comply with its obligations under its for reconsideration of her classification in duty of care with regard to its officials, grade and to find that she is entitled to a it is sufficient to point out that this review of her classification with effect from duty cannot lead the administration to 5 October 1995. The appellant further construe a provision of Community claims that the Court should order the law in a manner contrary to its actual Commission to pay the costs of both sets of wording... In the present case, Arti- proceedings. cle 31(2) of the Staff Regulations must be interpreted as meaning that it applies only exceptionally at the time of recruitment of an official. Conse- quently, the Court considers that the Commission did not fail to fulfil its 19. The Commission contends that the obligations by refusing to reconsider Court should dismiss the appeal and order the applicant's classification in the applicant to pay the costs of these grade...'. proceedings.

20. In support of her appeal the applicant puts forward five pleas in law: 16. The Court of First Instance also rejected the applicant's argument alleging infringement of the principle of equal treatment. 18 — failure to follow the case-law relating 18 — Paragraphs 33 and 34 of the contested order. to the existence of material new facts;

19 — See points 24 to 27 of the appeal. 20 — See points 30 to 39 of the appeal. 22. Thus, in the pleas alleging failure to 21 — See points 57 to 59 of the appeal. follow the case-law relating to the existence 22 — Points 11 to 23 of the appeal.

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— infringement of the principle of equal First plea, alleging failure to follow the treatment enshrined in Article 5(3) of case-law relating to the existence of mate- the Staff Regulations; 23 rial new facts

24. The appellant maintains that the Court of First Instance erred in law when it held — breach of the principle of care; 24 that the decision of 7 February 1996 did not constitute a material new fact which would allow the re-opening of the periods for lodging a complaint and bringing an action laid down by Articles 90 and 91 of the Staff Regulations.

— failure to state the grounds of the contested order.

Thus, the Court of Justice has consistently 26. In the present case, the applicant is declared inadmissible '... an appeal [or indeed merely reiterating the arguments plea] which simply repeats or reproduces which she put forward before the Court of verbatim the pleas in law and arguments First Instance, without specifying the ele- already submitted to the Court of First ments of law which specifically support her Instance, including those based on factual request for the setting aside of the order. allegations expressly dismissed by that Court'. 30 The Court of Justice considers that '... in reality, such an appeal amounts to no more than a request for a re- examination of the application submitted In her appeal, she stated:

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Furthermore, examination of the pleadings 29. In the three pages of the appeal devoted confirms that, in support of the view that to this plea, the applicant merely copied 'the decision of 7 February 1996 has been verbatim the arguments which she had put misconstrued', 34 the applicant in effect forward before the Court of First merely reproduced the arguments she had Instance, 36without specifying the elements put forward at first instance. 35 of law which specifically supported her application for annulment.

27. Consequently, I propose that the Court should reject the first plea in the appeal as manifestly inadmissible. For the reasons stated in point 25 of the present Opinion, I therefore propose that the Court reject this second plea as mani- festly inadmissible.

Second plea, alleging infringement of the principle of equal treatment enshrined in Article 5(3) of the Staff Regulations

28. By her second plea, the appellant Third plea, alleging breach of the principle claims that the Court of First Instance of care infringed the principle of equal treatment enshrined in Article 5(3) of the Staff Reg- ulations.

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stood the precise scope of the principle of to assess the possible application of that care. 37 provision. 39

The appellant maintains that an interpreta- tion consistent with the 'actual wording' of In point 35 of the contested order, the Article 31(2) of the Staff Regulations there- Court of First Instance held that, in refusing fore cannot vary according to whether to review the applicant's classification in officials were recruited before or after the grade, the Commission had not failed to date of delivery of the judgment in Alex- fulfil its obligations under its duty of care opoulou v Commission. with regard to its officials. In support of its finding, the Court of First Instance stated that this duty '[could] not lead the admin- istration to construe a provision of Com- munity law in a manner contrary to its 31. It must be borne in mind that, in actual wording...'. 38 connection with the first plea, the appellant did not adduce any evidence from which it might be concluded that the Court of First Instance had erred in law in considering that the decision of 7 February 1996 did not constitute a material new fact which would allow the re-opening of the time The appellant is of the opinion that to give periods laid down in the Staff Regulations. officials the opportunity to submit a As I now see it, I must conclude that there is request for examination of their qualifica- no new fact permitting the applicant to tions with a view to appointment in a contest the appointing authority's decision higher grade would 'not lead the adminis- of 26 November 1993 on her initial classi- tration to construe' Article 31(2) of the fication. Staff Regulations 'in a manner contrary to its actual wording'. On the contrary, in the judgment in Alexopoulou v Commission, the Court of First Instance held that, in order to comply with the 'actual wording' of Article 31(2) of the Staff Regulations, As the Court of Justice pointed out the Commission was required in special recently: circumstances, such as where a candidate had exceptional qualifications, specifically

33. By her fourth plea, the appellant main- tains that the contested order is vitiated by a number of defects in the grounds. Therefore, even on the assumption that the Court of First Instance did misunderstand the precise scope of the principle of care, to set aside the contested order on that point still could not justify the applicant's request for reclassification in grade. Since she has not adduced any evidence of an 34. This last plea may be broken down into error in law relating to the only factor three parts. susceptible of allowing her to submit a request for a review of the definitive decision on her classification in grade following the expiry of the period pre- scribed by Article 90(2) of the Staff Reg- ulations, it would not avail the appellant if 35. In the first part, 42 the appellant alleges the contested order were to be set aside on that the Court of First Instance did not the point criticised in the present plea. In adopt a position on her plea alleging particular, the principle of care could not infringement of Article 176 of the EC permit or require the administration to Treaty. examine a request for reconsideration sub- mitted following the expiry of the time- limits laid down in the Staff Regulations where no material new facts had come to light.

36. By the second part, 43 the applicant recruited in October 1995 had themselves seeks to '... emphasise the different reason- become definitive since more than three ing in the contested order by comparison months separate the two dates. with the order made, on the basis of the same reasoning, in the Gevaert case (test case)...', 44 and states that in Gevaert the Court of First Instance declared Mr Gevaert's action inadmissible after stating The applicant thus claims that the Court of its reasons in greater detail than it did in the First Instance: contested order. Consequently, the appli- cant '... considers that the Court of First Instance should have had to set out more clearly the reasons which led it to hold that the internal decision of 7 February 1996 did not constitute a new fact'. 45 (a) denied officials recruited before 5 October 1995 the opportunity to challenge the decisions on their classi- fication in grade on the ground that they had become definitive, but 37. Finally, in the third part 46 of the plea, the applicant submits that the statement of grounds for the contested order is vitiated by a contradiction. (b) allowed officials recruited in October 1995 to challenge the decisions on their classification in grade even though those decisions had also become defi- In paragraph 30 of the order, the Court of nitive. First Instance held that 'the decision of 7 February 1996... could not constitute a new fact [on the ground that it] has neither the purpose nor the effect of calling in question administrative decisions which 38. I propose that the Court reject each of had become final before it entered into these parts. force'. Furthermore, the Court recognised that the decision of 7 February 1996 might apply to officials recruited on or after 5 October 1995. The applicant points out that, on the date on which the decision of 7 February 1996 was adopted, the deci- 39. For the reasons stated in points 31 and sions on classification in grade of officials 32 of this Opinion, I believe that the first part of the plea is inoperative. In the absence of material new facts, Article 176 43 — Points 54 to 56 of the appeal. of the EC Treaty neither authorises nor 44 — Point 54 of the appeal (the appellant is refetring to the requires the Commission to examine order of the Court of First Instance in Gevaert v Commission). requests for reconsideration of classifica- 45 — Point 56 of the appeal. tion in grade submitted following the 46 — Points 24 to 27 of the appeal. expiry of the time-limit for lodging com-

41. Finally, the third part contains a criti- cism which is clearly directed against the 42. Under Articles 69(2) and 118 of the order of the Court of First Instance in Rules of Procedure of the Court of Justice, Gevaert v Commission. the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Under Article 70 of the Rules of Procedure, in staff appeals the institutions are to bear Contrary to the applicant's contention, the their own costs. However, under the second Court of First Instance, in the contested paragraph of Article 122 of the Rules of order, did not '... recognise that the Com- Procedure, Article 70 is not to apply to mission's decision of 7 February 1996... appeals brought by officials or any other applies to officials recruited on or after servants of an institution against the insti- 5 October 1995...'. 4 8 Nor did the Court of tution. Since the appellant has been unsuc- First Instance, in the contested order, '... cessful, she must be ordered to pay the accept that officials recruited in October costs in accordance with the form of order sought by the Commission.

47 — See also, to that effect, Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363. 49 — Point 27 of the appeal. 48 — Point 25 of the appeal. 50 — Paragraph 40.

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Conclusion

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