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

JUDGMENT OF THE COURT (Fifth Chamber)

1 July 1999 (1)

(Appeal - Action declared manifestly unfounded or manifestly inadmissible - Officials - Classification in grade)

In Case C-155/98 P,

Spyridoula Celia Alexopoulou, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by Olivier Slusny, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,

appellant,

APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 13 February 1998 in Case T-195/96 Alexopoulou v Commission [1998] ECR-SC I-A-51 and II-117, 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, and Julian Currall, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, J.C. Moitinho de Almeida, C. Gulmann, L. Sevón (Rapporteur) and M. Wathelet, Judges,

Advocate General: P. Léger,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 21 January 1999,

after hearing the Opinion of the Advocate General at the sitting on 25 March 1999,

gives the following

Judgment

1. By application lodged at the Court Registry on 21 April 1998, Ms Alexopoulou brought an appeal under Article 49 of the EC Statute and the corresponding articles of the ECSC and EAEC Statutes of the Court of Justice against the order of the Court of First Instance of 13 February 1998 in Case T-195/96 Alexopoulou v Commission [1998] ECR-SC I-A-51 and II-117 ('the contested order') in so far as it dismissed as manifestly lacking any foundation in law or manifestly inadmissible an action seeking, first, annulment of (a) the Commission's decision of 8 January 1996 classifying the appellant in Grade A 7, Step 5, and implicitly refusing to appoint her to Grade A 6, and (b) the decision of 28 August 1996 rejecting a complaint against that decision, and second, compensation for the material damage suffered by the appellant.

2. It is clear from the contested order that, on 16 March 1989, the appellant was recruited by the Commission as a member of temporary staff in Grade A 7, Step 1. After passing an internal competition, she was appointed as a probationary official as an administrator in Grade A 7, Step 5. The appellant challenged the decision of appointment in so far as it concerned her classification in grade, claiming that she should have been classified in Grade A 6.

3. That decision was annulled by the judgment of the Court of First Instance in Case T-17/95 Alexopoulou v Commission [1995] ECR-SC I-A-227 and II-683, 'Alexopoulou I'), on the ground that, in the presence of special circumstances such as a candidate's exceptional qualifications, the appointing authority is required to

   make a specific assessment of the possible application of Article 31(2) of the Staff Regulations of Officials of the European Communities ('the Staff Regulations').

4. However, in order to refuse the appellant's appointment in the higher grade, the Commission had based its decision solely on its decision of 1 September 1983, by which it had refused to exercise the discretionary power which Article 31(2) of the Staff Regulations confers on it.

5. Following that judgment, the Commission reconsidered the appellant's position under the Staff Regulations and, by decision of 8 January 1996, classified her in Grade A 7, Step 5.

6. After the Commission had rejected the complaint submitted by the appellant, she brought an action, on 27 November 1996, before the Court of First Instance which dismissed it on the basis of Article 111 of its Rules of Procedure.

7. The Court of First Instance noted, in particular, that it was clear from Article 31(2) of the Staff Regulations that the appointing authority had the power, but not the obligation, to make a classification in a higher grade. Since the decision of 8 January 1996 had been adopted after the appointing authority had made an assessment of the possible application of that provision to the appellant, that authority had not infringed that provision of the Staff Regulations.

8. Those were the circumstances in which the appellant brought the present appeal, which is based on four grounds. The first ground alleges defects in the statement of the reasons on which the contested order is based and infringement by the Court of First Instance of Article 111 of its Rules of Procedure; the second on infringement of Article 31 of the Staff Regulations; the third on breach by the Court of First Instance of the obligation to exercise its powers of judicial review over the appointing authority; and the last on breach of the principle of the protection of legitimate expectations and of Article 48 of the Rules of Procedure of the Court of First Instance.

   The first ground of appeal

9. The first ground, alleging defects in the statement of the reasons on which the contested order is based and infringement by the Court of First Instance of Article 111 of its Rules of Procedure, is composed of four parts. By the first part, the appellant complains that the Court of First Instance did not state the reasons for which the action was manifestly unfounded in law or inadmissible.

10. The Commission contends, on the other hand, that the Court of First Instance correctly applied Article 111 of its Rules of Procedure by comparing the arguments put forward by the appellant with existing case-law, and by deducing from that

    comparison that her arguments were 'manifestly' lacking any foundation in law since they were clearly contradicted by that case-law.

11. In that regard, it should be noted that, under Article 111 of the Rules of Procedure of the Court of First Instance, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.

12. In this case, the argument of the appellant was based on the premiss that, by reason of her exceptional qualifications, she was entitled to be appointed to the higher grade.

13. Such an argument was, however, manifestly contrary to a consistent line of cases decided by the Court of Justice according to which, concerning classification in grade, the appointing authority has a wide discretion, in particular for the purpose of assessing the previous practical experience of a person recruited as an official (see, to that effect, Joined Cases 66/83 to 68/83 and 136/83 to 140/83 Hattet and Others v Commission [1985] ECR 2459, paragraph 28; Joined Cases 314/86 and 315/86 De Szy-Tarisse and Feyaerts v Commission [1988] ECR 6013, paragraph 26; and Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 15; see also Alexopoulou I, paragraph 19).

14. In those circumstances, a given level of practical experience cannot confer on the person possessing it a right to be appointed to the higher grade of the career bracket concerned (see Klinke, paragraph 30; Alexopoulou I, paragraph 20; and Case T-12/97 Barnett v Commission [1997] ECR-SC I-A-313 and II-863, paragraph 50).

15. It follows that the Court of First Instance correctly held that the application was manifestly unfounded within the meaning of Article 111 of its Rules of Procedure.

16. The second part of the first ground of appeal alleges that the statement of reasons was defective in that the Court of First Instance did not determine, in paragraph 57 of the contested order, whether the application was manifestly unfounded or manifestly inadmissible. Therefore the Court introduced a contradiction in the reasoning, which amounts to a defect in the statement of reasons.

17. The Commission disputes the appellant's interest in putting forward that ground of appeal, since, whatever the response, the operative part of the contested order will remain the same. It states moreover that it is clear from even a superficial reading of the contested order that the alternative wording of paragraph 57 addresses the two arguments relied on in turn in relation to different aspects of the application.

18. In that regard, it should be observed that paragraph 57 of the contested order provides a synthesis of all the conclusions which the Court of First Instance drew concerning the various claims, pleas or parts of pleas relied upon by the appellant.

19. In paragraphs 44 and 46 of the contested order, the Court of First Instance concluded that the application for annulment of the decision of 8 January 1996 was manifestly unfounded, in paragraph 50 that the application for annulment of the decision of 28 August 1996 was manifestly inadmissible, and in paragraph 56 that the application for damages was manifestly unfounded.

20. Therefore when the Court of First Instance concluded in paragraph 57 that the application had to be dismissed as lacking any foundation in law or as manifestly inadmissible, it did so correctly, with sufficient reasoning and without contradicting itself.

21. The third part of the first ground of appeal was based on the fact that, contrary to Article 111 of the Rules of Procedure of the Court of First Instance, the views of the Advocate General had not been heard. Since the appellant abandoned that plea at the hearing, however, there is no need to rule on it.

22. By the fourth part of this ground of appeal, the appellant complains that the Court of First Instance dealt jointly, in paragraph 43 of the contested order, with the rules applicable to the classification of an official and those applicable to his promotion, although they are based on different provisions.

23. The Commission contends that the appellant's interpretation of paragraph 43 of the contested order is incorrect in so far as the reference to promotion is only made by analogy with the principles concerning classification.

24. In that regard, it should be observed that the reasoning of the Court of First Instance is based on the settled case-law, mentioned in paragraph 14 of the present judgment, according to which a given level of practical experience cannot confer on the person possessing it a right to be appointed to the higher grade of the career bracket concerned.

25. The Court of First Instance thus held, in paragraph 36 of the contested order, that the appointing authority is not required to apply Article 31(2) of the Staff Regulations, even in the case of a candidate with exceptional qualifications. It continued, in paragraph 38, by observing that, where it has in fact assessed the specific qualifications and practical experience of a person in the light of the criteria laid down in Article 31 of the Staff Regulations, and subject to any conditions in respect of classification which it may have imposed on itself in the vacancy notice, the appointing authority is free to decide, taking into account the interests of the service, whether it should award a classification in the higher grade.

26. It is thus by reasoning based on the principles applicable to classification that the Court of First Instance was able to conclude, in paragraph 43 of the contested order, that even where newly-recruited officials fulfil the conditions for classification in the higher grade of the career bracket, they do not thereby have an automatic right to such classification.

27. The Court may have considered it appropriate to supplement its reasoning by a reference by analogy to the principles applicable to promotion. Such an analogy cannot be criticised, since, in respect of promotion just as in respect of classification in the higher grade, the appointing authority has a wide discretion, so that neither an official who may be promoted nor a newly-recruited official has an automatic right to the application of the provisions of the Staff Regulations on which they rely.

28. It follows from the foregoing that the first ground of appeal must be dismissed.

    The second ground of appeal

29. By her second ground of appeal, the appellant complains that the Court of First Instance infringed Article 31 of the Staff Regulations. She submits in that regard that, in paragraph 37 of the contested order, the Court of First Instance added to Article 31 of the Staff Regulations a twofold condition which it does not contain, namely the option of resorting to that provision in an exceptional case and for an exceptional candidate.

30. The Commission recalls that in Alexopoulou I the Court of First Instance held that Article 31(2) of the Staff Regulations was a derogating rule and thus exceptional and that it was applicable, in particular, to exceptional candidates.

31. In paragraph 37 of the contested order, the Court of First Instance noted that the purpose of Article 31(2) of the Staff Regulations was, in particular, to enable the institution concerned in its capacity as employer to acquire the services of a person who is likely, in the context of the labour market, to be made numerous offers by other potential employers and thus to elude it and that it enabled the Commission, in exceptional cases, to grant more attractive conditions to an exceptional candidate in order to secure his services.

32. The conclusion as to the exceptional nature of the option of resorting to Article 31(2) of the Staff Regulations adds nothing new to the earlier case-law, according to which the option available to the administration to appoint a newly-recruited official to the higher grade in the starting or intermediate career bracket must be construed as an exception to the general classification rules (see Case 146/84 De Santis v Court of Auditors [1985] ECR 1723, paragraph 9; see also Case T-18/90 Jongen v Commission [1991] ECR II-187, paragraph 12; and Alexopoulou I, paragraph 20).

33. The reason for that exceptional nature is the competent authority's obligation to reconcile the use of its power under Article 31(2) with the observance of the requirements arising from the concept of a career bracket within the meaning of Article 5 of, and Annex I to, the Staff Regulations (De Santis, paragraph 9; and Alexopoulou I, paragraph 20).

34. As to the supposed condition relating to the exceptional nature of the candidate, it is deduced, by the appellant, from an incomplete reading of paragraph 37 of the contested order, in which the Court of First Instance notes in limine that the purpose of Article 31(2) of the Staff Regulations is, in particular, to enable the institution concerned, in its capacity as employer, to acquire the services of a person who is likely, in the context of the labour market, to be made numerous offers by other potential employers and thus to elude it.

35. Such a suggestion, which describes only one of the purposes of Article 31(2) of the Staff Regulations, does not add any additional condition to the application of that provision.

36. It follows that, by stating, in paragraph 37 of the contested order, that the Commission had the option to resort to Article 31(2) of the Staff Regulations, in exceptional cases and for an exceptional candidate, after first recalling that the purpose of that provision was, in particular, to enable the institution concerned in its capacity as employer to acquire the services of a person who is likely, in the context of the labour market, to be made numerous offers by other potential employers and thus to elude it, the Court of First Instance applied Article 31(2) of the Staff Regulations correctly.

37. The second ground of the appeal must therefore also be dismissed.

    The third ground of appeal

38. By her third ground of appeal, the appellant complains that the Court of First Instance infringed its obligation to exercise its powers of judicial review over the appointing authority and did not check whether that authority had based its decision on incorrect or incomplete findings of fact, by not making any finding that DG IX, which was empowered to adopt a decision on classification, had consulted DG V, that is the Directorate-General to which the appellant was assigned.

39. The Commission challenges the admissibility of that plea in law, on the ground that it is put forward for the first time before the Court of Justice. It points out that the appellant fails to state how the error resulting from the failure to consult its recruiting service could have influenced the decision which she has challenged.

40. In that regard, it is clear from the case-file transmitted by the Court of First Instance that the appellant did not raise that objection, either in the application or

    in the reply lodged with the Court of First Instance, in support of her plea based on manifest error of assessment on the part of the appointing authority.

41. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance.

42. It follows that this ground of appeal is inadmissible.

    The fourth ground of appeal

43. By her fourth ground of appeal, the appellant complains that the Court of First Instance infringed the principle of the protection of legitimate expectations (first part) and Article 48 of the Rules of Procedure of the Court of First Instance (second and third parts).

44. By the first part of this ground of appeal, the appellant complains that the Court of First Instance infringed the principle of the protection of legitimate expectations by asking her to submit to it her observations on a text which it had sent to her without however taking account of those observations.

45. It should be noted in that regard that, by letter of 11 November 1997, the Registrar of the Court of First Instance sent the appellant a copy of the judgment in Barnett, inviting her to submit her observations 'on the steps to be taken in the proceedings in the light of that judgment'.

46. It is clear from the wording of that letter that the appellant was thus invited to make observations not on the content of the judgment which had been sent to her, but on the approach she proposed to adopt with respect to the further course of the proceedings that she had herself initiated before the Court of First Instance.

47. It follows that that act of the Registrar of the Court of First Instance can in no way have harmed the appellant's legitimate expectation as to the possibility of submitting observations which were not provided for in the Rules of Procedure.

48. The second part of the ground of appeal is based on infringement of Article 48(1) and (2), first and second subparagraphs, of the Rules of Procedure of the Court of First Instance. The appellant submits that, by failing to take cognisance of her observations containing new pleas in law based on matters of fact and of law which came to light in the course of the procedure (namely the Barnett judgment), the Court of First Instance wrongly omitted to apply those provisions.

49. The Commission states that a judgment cannot be considered as a new fact and that it cannot justify the application of the derogating rule allowing new pleas in law to be introduced in the course of proceedings.

50. Article 48(1) and (2), first and second subparagraphs, of the Rules of Procedure of the Court of First Instance provides:

    '1. In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in offering it.

    2. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

    If in the course of the procedure one of the parties puts forward a new plea in law which is so based, the President may, even after the expiry of the normal procedural time-limits, acting on a report of the Judge-Rapporteur and after hearing the Advocate-General, allow the other party time to answer on that plea.'

51. In that regard, it should be noted that the observations lodged by the appellant on Barnett have never been described by her as a new plea in law within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance and she has never relied on that provision to justify lodging observations not provided for in the Rules of Procedure. On the other hand, the 'preliminary observations' of the document lodged begin as follows: 'Ms Barnett did not put forward the same pleas in law as Ms Alexopoulou ... Ms Alexopoulou's observations will therefore consist only of comparisons on the facts'. The beginning of the 'conclusions' of those observations is worded as follows: 'The comparative analysis carried out above shows sufficiently that the appellant in fact fulfils the criteria of the Alexopoulou I judgment of 5 October 1995 ... which the Commission itself recognises as being "the most likely to apply" ... but she also satisfies the other conditions in the Commission's proposal to Trade-Union Organisations about the consequences of Alexopoulou I ... as "sets of criteria", and cumulatively'.

52. It follows from even a superficial analysis of those observations that they do not contain any new plea in law within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance, but merely seek to prove a certain number of circumstances of fact, as a supplement to the pleadings already lodged.

53. It follows that the Registrar was correct in considering those observations as a document not provided for by the Rules of Procedure and stating that the Court of First Instance would not take account of it.

54. The third part of the ground of appeal is based on infringement of the third subparagraph of Article 48(2) of the Rules of Procedure of the Court of First Instance.

55. The appellant submits that, in the contested order, the Court of First Instance failed to give a ruling under the third subparagraph of Article 48(2) of its Rules of

    Procedure, according to which '[C]onsideration of the admissibility of the plea shall be reserved for the final judgment.'

56. In that regard, since, as was explained in connection with the second part of this ground of appeal, the observations lodged by the appellant did not amount to a plea in law within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance, but an offer of evidence based on circumstances of fact, the Court was right not to take account of them and not to rule on that point in the contested order.

57. Since none of the parts of the fourth ground of appeal is well founded, it follows that it must be dismissed.

58. Accordingly, the appeal must be dismissed in its entirety.

    Costs

59. Under Article 69(2) of the Rules of Procedure, which is applicable to appeal proceedings pursuant to Article 118 thereof, 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 those Rules, in proceedings between the Communities and their servants, institutions are to bear their own costs. However, by virtue of the second paragraph of Article 122 of the Rules of Procedure, Article 70 does not apply to appeals brought by officials or other servants of an institution against the latter. Since the appellant has been unsuccessful in her appeal, she must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders Spyridoula Celia Alexopoulou to pay the costs.

PuissochetMoitinho de Almeida Gulmann Sevón Wathelet

Delivered in open court in Luxembourg on 1 July 1999.

R. Grass J.-P. Puissochet

Registrar President of the Fifth Chamber

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1: Language of the case: French.