Court of Justice of the European Communities (including Court of First Instance Decisions)

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Appeals ° Pleas in law ° Mere repetition of the pleas in law and arguments before the Court of First Instance ° Inadmissibility ° Appeal dismissed
(EC Statute of Court of Justice, Arts 49 and 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

In Case C-31/95 P,
Sergio Del Plato, an official of the Commission of the European Communities residing in Varese (Italy), represented by Luigi Bonomi, of the Varese Bar, with an address for service at 6 Via Orrigoni, 21100 Varese,
appellant,
APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 7 December 1994 in Case T-242/94 Del Plato v Commission [1994] ECR-SC II-961, seeking to have that order set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by Gianluigi Valsesia, Principal Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
THE COURT (Second Chamber),
composed of: G. Hirsch (Rapporteur), President of the Chamber, G.F. Mancini and F.A. Schockweiler, Judges,
Advocate General: N. Fennelly,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order

1 By application lodged at the Court Registry on 9 February 1995, Mr Del Plato brought an appeal under Article 49 of the Statute of the Court of Justice of the EC and the corresponding provisions of the ECSC and EAEC Statutes against the order of the Court of First Instance of 7 December 1994 in Case T-242/94 Del Plato v Commission [1994] ECR-SC II-961 dismissing as inadmissible his action for, first, the annulment of the decision of 1 June 1992 excluding him from the list of candidates regarded as suitable for advancement from category B to category A and, secondly, an order that the Commission compensate him for the material and non-material damage which he considers that he has suffered.
2 It appears from the order under appeal that the appellant did not react to the contested decision within the period prescribed by Article 90 of the Staff Regulations of Officials of the European Communities.
3 Following a complaint submitted under Article 90 of the Staff Regulations against the decision notifying him of his own exclusion, Mr X, a colleague of Mr Del Plato' s, was, according to a letter sent to him by the Commission on 29 July 1993, included on 8 July 1993 in the list of candidates regarded as suitable to change category.
4 In order to interrupt the period within which an action must be brought, Mr X also lodged an application at the Court of First Instance on 17 March 1993 (OJ 1993 C 123, p. 13). Since the ad hoc committee upheld his complaint, Mr X withdrew his action and Case T-23/93 was removed from the register by order of 14 July 1993 (OJ 1993 C 231, p. 13).
5 Mr Del Plato learned of the decision finding Mr X suitable to change category following the publication on 27 August 1993 of the order removing Case T-23/93 from the register. On 19 November 1993 Mr Del Plato submitted a complaint against the decision of the ad hoc committee not to accept his candidature, arguing that the inclusion of Mr X in the list of candidates regarded as suitable to change category constituted a new fact, capable of re-opening the time-limits laid down by Articles 90 and 91 of the Staff Regulations.
6 The Commission did not reply to that complaint and on 27 June 1994 the appellant brought an action which gave rise to the order under appeal.
7 In that order, the Court of First Instance held that the decision to include Mr X on the list did not constitute a new fact vis-à-vis Mr Del Plato and could not be invoked by him to justify re-opening the time-limits laid down by Articles 90 and 91 of the Staff Regulations.
8 The Court of First Instance observed (at paragraph 20) that, according to the case-law of the Court of Justice, the adoption of a decision concerning one or more of an applicant' s colleagues may at the very most constitute a new substantial fact justifying the re-examination of his case where the situations concerned are similar and in particular where the reasons justifying the decision which may be adopted following re-examination are not different from the reasons which justified adoption of the decision which the applicant invokes by way of new fact.
9 In this case, the Court of First Instance found (paragraph 24) that, in his complaint of 19 November 1993, Mr Del Plato, in seeking re-examination of the decision of 1 June 1992 refusing to include him in the list of suitable candidates, complained that the latter decision was vitiated by an infringement of the provisions governing the procedure in question, on the ground that the ad hoc committee had required him to present a dissertation, although his academic and professional qualifications exempted him therefrom, by the fact that the subject of the dissertation was chosen by that committee and, finally by a breach of the obligation to state reasons in the letter informing him of his exclusion from the list of candidates. On the other hand, Mr X' s complaint, which led to his inclusion in the list of suitable candidates on 8 July 1993, called in question only the ad hoc committee' s assessment of the dissertation which he had presented.
10 The Court of First Instance concluded (paragraph 22) that the reasons which led to the exclusion of Mr Del Plato and, initially, of Mr X from the list of suitable candidates, and the subsequent inclusion of the latter in that list, were different, so that Mr Del Plato could not validly claim, in the absence of similarity between his situation and that of Mr X, that the decision to include the latter in the list of suitable candidates constituted a new substantial fact vis-à-vis him.
11 The appellant founds his appeal in particular on the pleas in law which, in his view, vitiate the objection of inadmissibility raised by the Commission and constitute the basis of the order appealed against by which the Court of First Instance upheld that objection.
12 The appellant claims that the Commission' s view is incorrect and manifestly impairs his right to a fair hearing inasmuch as it disputes that the recognition that the pleas in law submitted by another candidate in the same competition, who had brought an action before the Court against the measure excluding him on very similar grounds, constitutes a new fact.
13 According to the appellant, he could not have been aware of all the manifest procedural defects merely from the notification of the measure excluding him from the list of suitable candidates since it contained no statement of reasons whatsoever.
14 Mr Del Plato has no doubt that the Commission' s conduct following the action brought by another candidate, which resulted in the inclusion of that candidate in the list of suitable candidates, must be considered a "new fact" which may be invoked by him and consequently lead to the re-opening of the time-limit. The Commission acknowledged that the pleas which were relied on in support of the action of the other candidate, and led, on the basis of similar conduct, to his own unlawful exclusion from the list of suitable candidates, were well founded.
15 Finally, the appellant observes that, from a strictly legal point of view, a procedural defect is the proper subject of an objective review of legality, which is also of interest to other candidates in the same legal situation.
16 The Commission maintains that the appeal is inadmissible and, in any event, unfounded.
17 Under Article 119 of the Rules of Procedure, the Court may at any time dismiss an appeal where it is clearly inadmissible or clearly unfounded.
18 According to Article 51 of the EC Statute, an appeal is to be limited to points of law and is to lie on grounds of lack of competence of the Court of First Instance, a breach of procedure before it or the infringement of Community law by it. Article 112(1)(c) of the Rules of Procedure of the Court of Justice provides that an appeal must contain the pleas in law and the legal arguments relied on.
19 It follows from those provisions that an appeal must indicate precisely the contested elements of the judgment and the legal arguments supporting the application to have it set aside.
20 According to settled case-law, that requirement is not satisfied by an appeal which confines itself to repeating or reproducing word for word the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that court; in reality, such an appeal amounts to no more than a request for a re-examination of the application submitted to the Court of First Instance, a matter which falls outside the jurisdiction of the Court, by virtue of Article 49 of the EC Statute (see, in particular,the order of 17 October 1995 in Case C-62/94 P Turner v Commission [1995] ECR I-0000, paragraph 17).
21 In the present case, the Court of First Instance based its decision on the fact that the reasons which led to the exclusion of the appellant and, initially, of Mr X from the list of suitable candidates, and the subsequent inclusion of the latter in that list, were different.
22 The appellant does not, however, challenge that decisive part of the order but merely repeats his criticism of the arguments which were submitted by the Commission to the Court of First Instance and were held to be irrelevant.
23 The appeal must therefore be dismissed as manifestly inadmissible, in accordance with Article 119 of the Rules of Procedure.

Costs
24 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Article 70 of those Rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs. However, by virtue of Article 122 of those Rules, Article 70 does not apply to appeals brought by an official or other servant of an institution against that institution. Since Mr Del Plato has been unsuccessful, he must be ordered to pay the costs of these proceedings.

On those grounds,
THE COURT (Second Chamber)
hereby orders:
1. The appeal is dismissed as manifestly inadmissible.
2. Mr Del Plato is ordered to pay the costs of these proceedings.
Luxembourg, 14 March 1996.