C-171/00

LIBEROS v COMMISSION

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 22 November 2001 1

1. This case, concerning the taking into 1999 to enable it to give Decisions in cases account of professional experience for the when constituted by a single Judge: 3 purpose of classification in grade of a member of the temporary staff on recruit- ment, raises, at the stage of the appeal against the judgment of the Court of First Instance of the European Communities (Single Judge) of 9 March 2000 in Liberos v Commission, 2an important question of interpretation of the Rules of Procedure of ' 1 . The following cases, assigned to a the Court of First Instance relating to the Chamber composed of three Judges, may circumstances in which it may give be heard and determined by the Judge- decisions when constituted by a single Rapporteur sitting as a single Judge where, Judge. having regard to the lack of difficulty of the questions of law or fact raised, to the limited importance of the case and to the absence of other special circumstances, they are suitable for being so heard and determined and have been delegated under the conditions laid down in Article 51:

I — Legislative background

(a) cases brought pursuant to Article 236 A — The Rules of Procedure of the Court of the EC Treaty or Article 152 of the of First Instance EAEC Treaty;

2. Under Article 14(2) of the Rules of Procedure of the Court of First Instance, as amended by the decision of 17 May

B —• The legislative background to the decisions of 15 March 1996 and 5 November 1996

3. The Court of First Instance describes the (b) in respect of other grades [grades legislative background in the following other than A 1, A 2, A 3 and LA 3]: terms:

'1. Article 31 of the Staff Regulations of — up to one third of the appoint- the European Communities (here- ments to posts becoming vacant; inafter "the Staff Regulations") pro- vides:

— up to half the appointments to newly created posts. " 1 . Candidates thus selected shall be appointed as follows:

Save in respect of Grade LA 3, this provision shall be applied by groups of — officials in Category A or the six posts to be filled in each grade for Language Service: the purpose of this provision."

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— 3 years for Grades A 7 and LA 7

4. The facts, as described in the contested judgment,4 may be summarised as follows: on 25 October 1993, Mr Liberos, the

...". 4 — Paragraphs 7 to 14.

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applicant and appellant (hereinafter 'the principle established in the judgment of the appellant') submitted an application to the Court of First Instance in Alexopoulou v Commission in connection with a selection Commission. 5 procedure for temporary staff. The selec- tion notice specified that the post to be filled was at level A 7/A 4. On 17 October 1994, the Commission offered the appel- lant a post as a member of its temporary 8. In his action against the decisions of staff with provisional classification at 15 March and 5 November 1996, Grade A 7, Step 1. Mr Liberos raised a plea alleging infringe- ment of the second paragraph of Article 2 of the decision of 1 September 1983 and, in the alternative, a plea alleging that that decision was unlawful in so far as it states 5. On 14 November 1994 the appellant that the first paragraph of Article 2 applies accepted the Commission's offer, although to members of the temporary staff recruited he stated that he would not be able to take under Article 2(a) of the Conditions of up his post until 1 July 1995. The contract employment of other servants of the Euro- of employment was signed on 23 June pean Communities (hereinafter 'the Con- 1995. ditions of employment').

that the applicant had made an excusable appointing authority] by Article 31(2) error by taking as the time from which the of the Staff Regulations may, according period started to run the date on which his to the case-law, be regulated by inter- complaint was lodged, relying on the nal decisions, such as the new internal Administrative Notices, which are pub- directives issued by the Parliament. lished by the Commission concerning the There is nothing in principle to prohibit procedure for initiating and investigating that authority from establishing, by an requests and complaints under Article 90 of internal decision of a general nature, the Staff Regulations (hereinafter 'the rules for the exercise of the discretion Administrative Notices') 6and which led conferred on it by the Staff Regu- to confusion, and also on incorrect infor- lations ... Such an internal directive mation provided by an official of the must be regarded as a rule of conduct Directorate-General for Personnel and indicating the practice to be followed, Administration. Consequently, the Court which the administration imposes on declared the action admissible. itself and from which it may not depart without stating the reasons for doing so, since otherwise the principle of equal treatment would be infringed ..."

11. Ruling on Mr Libéros's pleas in law, it considered 'whether, having regard to the circumstances of the case, Article 2 of the decision of 1 September 1983, as applied 50 The decision of 15 March 1996 applies individually in the present case by the an internal decision of a general nature, Commission, which takes into account only namely the decision of 1 September the professional experience gained prior to 1983, which expressly indicates, in the the offer of employment, infringes the aims third paragraph of Article 2, the date of Article 31 of the Staff Regulations'. chosen for the purpose of calculating the professional experience taken into account for classification, namely the date on which the offer of employment is made. 12. The Court of First Instance took the following view:

54 Third, the date on which the contract is signed and the date on which the person concerned takes up his post are not generally very far apart. 57 The Commission was therefore entitled, in its decision of 15 March 1996, to fix the date on which the offer of employment was made as the final date for taking into account profes- sional experience, in accordance with 55 Last, to require the institution to its decision of 1 September 1983.' review the terms of the offer of employment after it has been accepted by the person concerned in order to take account of professional experience acquired between the date on which the offer was made and the date on 13. By the contested judgment, the Court which he actually takes up his post of First Instance dismissed the action. would allow him to postpone taking up his post in order to obtain a better classification, without objective reason or the possibility of effective control by the institution. 14. The appeal was lodged on 10 May 2000. The appellant claims that the Court of Justice should:

56 As for the applicant's argument regard- ing the judgment in Joined Cases T-18/89 and T-24/89 Tagaras v Court — set aside the contested judgment,

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LIBEROS v COMMISSION

— allow the claims submitted by the legality of the Administrative Notices. In appellant at first instance, the second, he claims that the action raised, as to the substance, the question of the legality of the third paragraph of Article 2 of the decision of 1 September 1983 on the criteria applicable to grade and step clas- — order the Commission to pay the costs. sification on recruitment.

19. The first plea essentially raises the 17. The first alleges infringement of question whether internal measures govern- Article 14(2)(2)(a) of the Rules of Pro- ing the exercise of their discretion by the cedure of the Court of First Instance, in the Community institutions should be regarded version resulting from the decision of as acts of general application within the 17 May 1999, enabling that Court to give meaning of Article 14(2) of the Rules of decisions in cases when constituted by a Procedure of the Court of First Instance. single Judge. The appellant considers that it was wrong for the case to be heard by the Judge-Rapporteur sitting as a single Judge since the case raised questions concerning the legality of acts of general application. He develops his first plea in two limbs. In 20. Before considering the two limbs of this the first, he maintains that the admissibility plea in turn, I should describe the legislative of the action raised the question of the context of that provision.

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A — General observations on the meaning mined', may be delegated by the Chamber and scope of Article 14(2) of the Rules of to the Judge-Rapporteur sitting as a single Procedure of the Court of First Instance Judge.

1. Literal and systematic interpretation 24. Therefore, Article 14(2)(2) should be read as specifically defining that second series of restrictions. Cases which are not suitable for being heard by a single Judge 21. The version of Article 14 of the Rules are those raising issues as to the legality of of Procedure of the Court of First Instance an act of general application [(a)], but also applicable to the present case is that other cases, because of the sphere con- resulting from the Court's decision of cerned [(b)]: competition and concen- 17 May 1999 enabling the Court to give trations, State aid, trade protection meas- decisions in cases when constituted by a ures, disputes relating to intellectual prop- single Judge. erty rights and common organisation of the markets.

7 February 1997 pursuant to Articles 168a 29. The fact that the proposal of the Court of the EC Treaty (now Article 225(2) EC), of Justice was accepted should not obscure Article 32d of the ECSC Treaty and the doubts which it raised with respect to Article 140a of the EAEC Treaty. 8 principles and as regards its effectiveness. Thus, the Parliament's Committee on Legal Affairs and Citizens' Rights recommended that the Court of Justice submit a report to the Parliament and the Council containing an assessment of the application of the decision three years after its entry into

Judge. However, that consideration does 28. Those factors are mentioned in the first not make it possible to obtain a precise four recitals in the preamble to Council profile of those cases, since acts of general Decision 1999/291/EC, ECSC, Euratom of application in the technical sense or acts 26 April 1999. 10 whose validity or interpretation are import- ant in an indeterminate number of cases 12 may be involved. In the present case, 8 — Sec the report of Mr D.W_ Martin to the Parliament's although internal directives are intended Committee on Legal Affairs and Citizens' Rights on the Council's draft decision amending Council Decision 88/591/ECSC/EEC/Euratom establishing a Court of First Instance of the European Communities to enable it to give 11 — Document cited in footnote 8. decisions in cases when constituted by a single judge 16290/97 — C4 — 0218/97 — 97/0908 (CNS)]. 12 — See, in that regard, the wording used in the proposal for amendment to the Rules of Procedure, cited in Point 27 in 9 — See the views of Rinuy, L., 'L'incursion prudente du juge fine above, and the assessment of the proposal contained in unique au Tribunal de première instance des Commun- the statement of reasons of the report cited in footnote 8 autés', RAE-LEA 2000, p. 267. [A,2,i)]: '.

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to apply to an indeterminate number of challenge, for the purpose of obtaining the cases, it is not certain that they therefore annulment of a decision of direct and constitute acts of general application in the individual concern to that party, the valid- technical sense. ity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 173 of the Treaty to bring a direct action challenging those acts by which it was thus affected without 31. In that regard, the concept of an act of having been in a position to ask that they general application is clearly different from be declared void. The field of application of that of an individual decision. However, I the said article must therefore include acts think it is prima facie difficult to conclude a of the institutions which, although they are contrario that, since an internal act of an not in the form of a regulation, nevertheless institution does not constitute an individual produce similar effects and on those decision, it has general application within grounds may not be challenged under the meaning of Article 14(2) of the Rules of Article 173 by natural or legal persons Procedure of the Court of First Instance, other than Community institutions and both for reasons of substance and for Member States. This wide interpretation reasons of expediency. It is therefore of Article 184 derives from the need to necessary first to consider the concept of provide those persons who are precluded an act of general application in a more by the second paragraph of Article 173 general context and then to recall the from instituting proceedings directly in objectives of the amendment to the Rules respect of general acts with the benefit of of Procedure. a judicial review of them at the time when they are affected by implementing decisions which are of direct and individual concern to them.' 14

practice to be followed, which the adminis- Objectives of the amendment to the Rules tration imposes on itself and from which it of Procedure of the Court of First Instance may not depart without specifying the reasons which have led it to do so, since otherwise the principle of equality of treat- ment would be infringed'. 15 As such, they do not therefore alter the legal position of officials and members of staff to whom they are designed to apply through individ- ual decisions, but place limits on the 36. To describe internal acts as acts of discretion of the institution which issues general application in order to infer that them. the analysis of the relevance of the assess- ment criteria which they provide falls outside the jurisdiction of the single Judge pursuant to Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance would also seriously affect the objectives pursued by the amendment to the Rules of Procedure.

34. The expression 'internal decision of a general nature' used by the Court of First Instance in paragraph 50 of the contested judgment, although ambiguous, does not affect that assessment: it merely stresses the fact that the act in question, although 37. The issue here is not to discuss the called a 'decision' was not an individual actual or supposed use of the single Judge decision. as a solution to the problems encountered by the Court of First Instance, but only to point out that the interpretation that will be given to the Rules of Procedure may contribute to depriving that instrument of a large part of its practical application, even though the Court of Justice initiated it and that use has not yet been assessed.

39. The internal acts of the institutions intended to regulate the exercise of their 41. First of all, it must be pointed out that discretion differ from acts of general appli- the first plea deals essentially with the cation in that they create obligations only formal legality of the contested judgment, for their authors and, as such, do not alter claiming that it was wrong for the judg- the legal position of the persons to whom ment to be given by a single Judge. In that they are designed to apply through individ- regard, I should point out that it is common ual decisions. In order to preserve the unity ground that the judgment, since it rejected of the Community legal order and having the application, is unfavourable to the regard to the objectives of the amendment applicant. to the Rules of Procedure of the Court of First Instance at issue here, it is necessary to interpret the concept of act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Pro- 42. I must agree with the Commission that cedure as not applying to those internal the Court's decision relating to the admissi- acts. bility of the application is favourable to the applicant in that it accepts that it is admissible even though it was lodged out of time. It is in this connection that the Court of First Instance examined the act of an allegedly general nature. The fact B — First limb of the first plea remains that, in any event, the Court of First Instance gave judgment when con- stituted in a manner which the appellant considers inappropriate. The validity of the 1. Admissibility composition of the Court seems to be so fundamental a matter that it could be raised, if necessary, of the Court's own motion. (a) Arguments of the parties

has recently delivered his Opinion. 16 That although the admissibility of the appli- case concerned the admissibility of an cation raised the question of the legality appeal against a judgment dismissing the of the Administrative Notices. applicants' claims for annulment of a Council regulation. The Court of First Instance had ruled on the merits, without examining the plea of inadmissibility raised by the Council. The Advocate General, 46. The Commission considers, for its part, referring to the Opinion of Advocate Gen- that the admissibility of the application did eral Mischo in France v Comafrica and not raise the question of the legality of the Others, 17 proposed that the appeal should rules published in the Administrative be allowed on the basis, in particular, that Notices, but rather the question whether the Court of First Instance should be the appellant had made an excusable error regarded as having implicitly acknowl- so that the fact that the time-limit for edged admissibility by ruling on the bringing the action had been exceeded merits. 18 However, in the present case, could be disregarded. that distinction cannot be made since the appellant does not dispute the decision relating to admissibility but the very com- position of the Court. 47. The Commission considers, in the alter- native, that that document does not con- stitute an 'act of general application', within the meaning of Article 14(2)(2)(a) 44. The first limb of the first plea should of the Rules of Procedure of the Court of therefore be declared admissible. First Instance, but an internal act of an institution, applicable only to its officials and members of the temporary staff. The fact that the provision is an exception to the rule contained in Article 14(2)(1) of the (2) Merits Rules of Procedure requires that the con- cept of an act of general application be interpreted strictly.

C — Second limb of the first plea 49. In the course of that examination, the Court found that the information con- tained in the Administrative Notices was 'such as to create confusion in the appli- cant's mind', 20 since it did not correspond 1. Arguments of the parties to the calculation rules in the Staff Regu- lations and the applicant had obtained confirmation of that information from a Commission official. It is not therefore apparent from the contested judgment that the Court ruled on the 'legality' of the rules 52. The appellant also considers that it was published in the Administrative Notices. wrong for the case to be heard by the Judge-Rapporteur sitting as single Judge although the application raised the ques- tion of the legality of the third paragraph of Article 2 of the decision of 1 September 1983 on the criteria applicable to grade and step classification upon recruitment. 50. In that regard, the question whether the information in question constituted rules may seem open to discussion. As regards the calculation of time-limits for submitting complaints and bringing actions, the Com- mission was not competent to amend the unequivocal rules on the matter contained 53. The Commission rejects that argument in the Staff Regulations. The information by referring to the contested judgment, given in that regard could only be by way which shows that the appellant was chall- of guidance. enging a decision of individual application and not the legality of an act of general application. The Commission doubts, fur- 19 — Paragraph 30 of the contested judgment. thermore, whether the decision of 20 — Paragraph 32 of the contested judgment. 1 September 1983 constitutes 'an act of

55. According to settled case-law, the decision of 1 September 1983 constitutes an internal decision laying down rules for V — The other pleas the exercise of the discretion conferred on the Commission by the Staff Regulations. 21 As a rule of conduct, indicating the practice to be followed, which the administration 58. By his second plea, the appellant asks imposes on itself, it is not, for the reasons that the contested judgment be set aside on stated above, 22 an 'act of general applica- the ground that it infringes the second tion' within the meaning of Article 14(2)(2)(a) paragraph of Article 2 of the decision of 1 September 1983 and Articles 31 and 32 of the Staff Regulations, which apply to 21 — The judgments in Blomefield v Commission, cited in members of the temporary staff by virtue of footnote 14, paragraph 20, Case 343/82 Michael v Commission [1983] ECR 4023, paragraph 15, and Case Article 5 of that decision. By his third plea, 146/84 De Santis v Court of Auditors [19851 ECR 1723, paragraph 11, adopted that categorisation tor decisions he claims that the grounds of the judgment having the same subject-matter. In respect of the decision of 1 September 1983, see Case T-2/90 Ferrara de Freitas v are, in any event, inadequate as regards the Commission [1991| ECR II-103, paragraph 61 and Case compatibility of the third paragraph of T-100/96 Vicente-Nunez v Commission [1998] ECR-SC I-A-591 and II-1779, paragraph 67. Article 2 of the decision with the Staff 22 — See point 21 et seq. Regulations.

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63. The appellant considers, essentially, 60. As regards the view that a provision that a rule which precludes the competent which precludes the taking into account of authority from taking into account all the experience acquired between the date on qualifications and professional experience which the offer of employment is made and of an official or member of the temporary the date of entry into the service of the staff gained prior to his recruitment to the Communities is contrary to Articles 31 and service of the Communities is contrary to 32 of the Staff Regulations, the Commis- the objectives of Articles 31 and 32 of the sion points out that the appellant with- Staff Regulations. Since it was held other- drew, at first instance, his plea alleging wise in the contested judgment, the appel- infringement of Article 31(2) of the Staff lant is raising a plea alleging infringement Regulations; that plea, raised at the appeal of the second paragraph of Article 2 of the stage, is therefore a new plea and, as such, decision of 1 September 1983, read in inadmissible. conjunction with Articles 31 and 32 of the Staff Regulations.

61. Finally, the Commission considers that the appeal lacks clarity. As reasoning, the 64. Therefore, the admissibility of the sec- appellant merely cites a series of extracts ond plea does not seem to pose any from judgments and provisions of the Staff particular difficulty, since it is a question Regulations, without explaining in what of law and, as such, subject to review by the respect the considerations of the Court of Court of Justice. First Instance contained in paragraph 49 et seq. of the contested judgment are contrary to the case-law he cites. 23 — Joined Cases T-18/89 and T-24/89 [1991] ECR II-53.

69. The second and third pleas are there- 66. With regard to the withdrawal at first fore admissible. instance of the plea alleging an infringe- ment of Article 31(2) of the Staff Regu- lations, it need only be stated that that withdrawal related to a plea alleging infringement of that article through a manifest error of assessment concerning the allegedly exceptional nature of the appellant's professional experience. It did B — Merits not, however, relate to the possible impli- cations of Article 31 of the Staff Regu- lations for the calculation of professional experience required under the second para- graph of Article 2 of the decision of 70. Under Article 31(1) of the Staff Regu- 1 September 1983. lations, candidates selected are to be appointed, as regards officials in Category A or the Language Service, to the starting grade of their category or service. Article 31(2) of the Staff Regulations pro- vides that exceptions may be made within 67. Finally, no ground for inadmissibility certain limits. It is clear from the case-law may be detected in the appellant's reason- that that provision confers a wide discre- ing. He has clearly shown in what respect tion on the competent authority 'in assess- he considers the case-law cited to be ing the practical experience of the persons relevant to the view he puts forward.

24 — Cited in footnote 23. 25 — I would also refer to the wording used by the Court of Justice in Case C-459/98 P Martínez del Peral Cagigal [2001] ECR I-135, paragraph 38: "... unless the appeal procedure is to be rendered meaningless, the fact that the same arguments have already been submitted at first instance i n order to challenge the legality of the decision of 68. With regard to the third plea, it should a Community institution cannot provide a ground for be pointed out that the appellant attempts declaring them inadmissible'.

72. The judgment in Tagaras v Court of Justice28 sets out the rules for calculating the professional experience of those con- cerned for the purpose of applying the 74. The fact that the judgment in Tagaras v second paragraph of Article 32 of the Staff Court of Justice refers to the second para- Regulations. Pointing out that 'the appoint- graph of Article 32 of the Staff Regulations ing authority has a wide discretion, within appears to have no effect on the reasoning the limits laid down by the second para- in the present case, since in both cases it is a graph of Article 32, to allow additional matter of appraising professional experi- seniority in step on recruiting an official, in ence. 29 In that judgment, the Court of order to take account of the previous Justice, as defendant, had made known the experience of a person appointed as an criteria which it applied to classification, so official both as regards the nature and the that the absence of an internal decision duration of that experience and its relation- specifying those criteria had no effect on ship, be it close or otherwise, to the the reasoning of the Court of First Instance. requirements of the post to be filled...' the Furthermore, the appellant's status as a Court takes the view that 'the applicant's member of the temporary staff seems to training and special experience should have have no effect on the relevance of the been appraised by reference to the training judgment in question, since the Commis- and experience which he could show at the 29 — The case for distinguishing between the aims of Article 31(2) of the Staff Regulations, as allowing only 26 — Case C-298/93 P Klinke v Court of Justice [1994] the interests of the service to De taken into account, and ECR 1-3009, paragraph 15, referring to the judgments in those of the second paragraph of Article 32 (see, for Michael v Commission, cited in footnote 21, paragraph 19, example, the Commission's view in paragraph 45 of the and Joined Cases 314/86 and 315/86 De Szy-Tarisse and contested judgment) was expressly rejected by the Court of Feyaerts v Commission [1988] ECR 6013, paragraph 26. Justice in Klinke v Court of justice, cited in footnote 26, paragraph 16. See, by way of contrast, the judgment of the 27 — See Article 5 of the decision of 1 September 1983. Court of First Instance in Case T-30/92 Klinke v Court of 28 — Cited in footnote 23, paragraphs 63 to 66. Justice [1993] ECR II-375, paragraph 26.

76. As regards members of the temporary staff and whatever instrument is to be regarded as equivalent to the decision appointing an official, it appears that the definitive classification of the person con- 79. Since the definitive classification of a cerned must take account of his profes- member of the temporary staff is not sional experience in as broad a manner as decided at the time of the offer of employ- possible. Without it therefore being necess- ment, the fact that it is impossible to take ary at this stage of my analysis to determine account at that time of professional experi- precisely the dies ad quern to be used when ence gained subsequently, up to the time he calculating the professional experience of a takes up his duties, and the length of time member of the temporary staff for the which may elapse between the date on purpose of his classification, it appears that which the offer is made and the date on in any event, failure to take into account which he takes up his duties do not appear professional experience gained after the to be circumstances capable of justifying offer of employment, according to the third the decision reached by the Court of First paragraph of Article 2 of the decision of Instance in the contested judgment. In that 1 September 1983, is contrary to the aims regard, the position of a member of the of Articles 31 and 32 of the Staff Regu- temporary staff is comparable to that of an lations. official.

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82. If the Court of Justice does not uphold the second plea, it should therefore uphold the third plea and set aside the contested judgment inasmuch as it rejected the appli- 87. As regards the application of Article 31 cation on the merits. of the Staff Regulations to members of the

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VIH — Conclusion

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

(1) set aside the judgment of the Court of First Instance of the European Communities of 9 March 2000 in Case T-29/97 Liberos v Commission inasmuch as it dismisses the application as unfounded;

(2) on the substance of the case, annul the Commission's decisions of 15 March 1996 and 5 November 1996, and