OPINION OF ADVOCATE GENERAL
DARMON
delivered on 29 September 1993 ( *1 )
Mr President,
Members of the Court,
1.
Since 1988, Franz Eppe had been Head of Unit VI-BI-4, in Grade A 4, in the Commission's Directorate General for Agriculture.
2.
By memorandum of 12 February 1990 he applied for a transfer as part of the ‘redeployment’ procedure under way in that directorate on the ground that, because several posts in his unit were vacant, the unit was not ‘sufficiently well equipped to deal with (certain) important tasks’. ( 1 )
3.
On 14 March 1990 he consented to be transferred to a post of adviser within the directorate. At that time it was made clear to him that the Director General could not give him any assurance as to the grade that he would hold in his new post.
4.
By memorandum of 21 June 1990 Mr Eppe withdrew his consent to the possibility of a transfer to the EAGGF, unless he was promoted to Grade A 3.
5.
In a memorandum sent on 25 June 1990 to the directors, deputy directors and heads of unit, the Director General of DG VI set out the reasons for, and the objectives of, a reorganization of that directorate. The reorganization involved the creation of post of ‘Adviser to Directorate VI. G (EAGGF)’. ( 2 )
6.
By memorandum of 6 August 1990, Mr Eppe reaffirmed that he would not accept a transfer without promotion.
7.
On 18 September 1990, he asked the Secretary General of the Commission to ensure that the new organization chart would leave his existing duties unchanged ‘so as to avoid any comparison with the transfer of the Head of Unit VI. E.4, concerning the disciplinary nature of which the public was in no doubt’. ( 3 ) On 15 October 1990 the Secretary General replied that he had suggested to the Director for Agriculture that he should differentiate between the two cases.
8.
On 17 October 1990 the Commission approved the new organization chart and decided (1) to create the post of adviser to the Director of DGVIGEAGGF and (2) to assign Mr Eppe to that post.
9.
That appointment was notified to Mr Eppe by his director on 6 November 1990, taking effect from 1 December 1990 at the latest. On 9 November 1990, the Directorate General for Personnel and Administration confirmed the Commission's decision.
10.
In a complaint dated 17 november 1990, Mr Eppe objected to the Commission decision of 17 October 1990 assigning him to his new duties.
11.
On 14 January 1991, he applied for his former post, which had been the subject of a vacancy notice dated 20 December 1990.
12.
On 25 February 1991, he lodged a further complaint against the Commission decision publishing the vacancy notice for that post, the decision appointing his replacement and the decision rejecting his own candidature.
13.
The first complaint was rejected on 21 May 1991, the second on 9 August 1991.
14.
In his first action before the Court of First Instance (Case T-59/91) Mr Eppe sought the annulment of the Commission decision of 17 October 1990. In a second action (Case T-79/91), he sought annulment of the the three Commission decisions mentioned above.
15.
Both actions, having been joined, were dismissed by judgment of the Court of First Instance of 10 July 1992. ( 4 )
16.
In his appeal against that judgment Mr Eppe alleges (1) a breach of procedure, (2) breach of the obligation to state reasons (Article 25 of the sr+) regarding the Commission decision to transfer him compulsorily, (3) breach of the principle of nondiscrimination, (4) illegality of the refusal to accept his application for his old post, and (5) breach of the duty to have regard to the welfare of officials.
17.
A preliminary point must be made. In paragraph 8 of his reply, Mr Eppe states that his appeal is not limited to certain specific pleas in law and that ‘he expressly maintains all the pleas in law and arguments relied on in his original actions’.
18.
By virtue of Article 112(l)(c) and the combined application of Articles 118 and 42(2) of the Rules of Procedure, picas in law and arguments must be set out in the notice of appeal and no fresh pleas may be introduced in the proceedings unless they are based on matters of law or of fact that come to light in the course of the procedure — which the appellant docs not claim to be the case.
19.
It follows that the notice of appeal determines conclusively the pleas in law advanced by the appellant and that any put forward at a later stage arc inadmissible. I shall therefore confine myself to the five points mentioned above, which I shall consider successively.
I — The breach of procedure
20.
The plea alleging a breach of procedure is divided into two parts. ( 5 )
21.
In the first, Mr Eppe criticizes the Court of First Instance for ‘disregarding’ ( 6 ) two arguments, one based on Article 29 of the sr+, the other on the Commission decision of 19 July 1988 concerning the filling of intermediate executive posts (COM (88) PV 928).
22.
As regards infringement of Article 29, Mr Eppe did not invoke it as a plea in law ( 7 ) but merely referred to it in support of the plea alleging breach of the principle of nondiscrimination. ( 8 )
23.
Pursuant to Article 51 of the Statute of the Court of Justice of the EEC, an appeal may be made on grounds of breaches of procedure before the Court of First Instance provided that they adversely affect the interests of the appellant. The breach must therefore have an impact on the judgment of the Court of First Instance.
24.
In its judgment, the Court of First Instance noted that ‘the applicant stated at the hearing that his action was based, as regards the procedure, solely on the failure to observe the redeployment procedure and that he did not intend alleging infringement of any other procedure, such as that provided for in Article 29 of the Staff Regulations...’. ( 9 )
25.
Mr Eppe cannot criticize the Court of First Instance for committing a procedural error by ignoring his argument based on Article 29 of the sr+ when, at the hearing, he stated that he did not wish to invoke that provision. The alleged breach could not therefore in any event have been prejudicial to his interests before the Court of First Instance — the Court did not, in view of the position taken by Mr Eppe, consider the application of that article, not even in connection with the plea alleging breach of the principle of nondiscrimination.
26.
As regards the allegation as to infringement of the Commission decision of 19 July 1988, the Court, quite properly, described it as a plea in law. ( 10 ) In fact, the Court of First Instance's examination of the effects of that decision necessarily involved its establishing whether it was applicable and, if it was, whether the procedure prescribed by it had been followed. That examination went considerably further then a mere review of the statement of reasons. Finding that the allegation constituted a plea in law and had been made at the stage of the reply, the Court of First Instance properly declared it inadmissible pursuant to Article 48(2) of its Rules of Procedure. ( 11 )
27.
Since that plea was not validly made before the Court of First Instance, it is inadmissible in the appeal. The Court of Justice has held that ‘... as follows from Articles 113(2) and 116(1) of the Rules of Procedure, fresh submissions not contained in the original application may not be raised in an appeal’. ( 12 )
28.
Finally, for the sake of completeness, it is clear from a comparison of paragraphs 96 and 40 of the judgment that, at the hearing before the Court of First Instance, the applicant waived any right to allege failure to observe any other appointment procedure than that decided upon for the purposes of the redeployment procedure, with the result that the Court of First Instance was under no obligation to ensure that the procedure laid down by the abovementioned Commission decision had been complied with.
29.
The first part of the first plea is therefore unfounded.
30.
In the second part, the appellant ‘contests the reasoning of the Court of First Instance in paragraphs 113 to 115 (in particular 114) regarding the comparative examination of the merits of the applicant and those of the other candidates’. ( 13 )
31.
As that complaint has no impact on the regularity of the procedure it will be examined in Part IV below.
32.
It follows that the first plea in law must be rejected.
II — Breach of the obligation to state reasons
33.
Mr Eppe alleges a first error in law, namely breach of the obligation to state the reasons on which a decision is based.
34.
In its judgment in Case C-283/90 P Vidrányi v Commission, ( 14 ) the Court accepted as a ground of appeal the claim that the lower court had failed in its obligation to stale the reasons for its decision. ( 15 )
35.
In saying that the Commission decision concerning Mr Eppe adequately stated the reasons on which it was based, has the Court of First Instance made it possible for ‘the Court [of Justice] to review the legality of [its] decision and [provided] the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested’? ( 16 )
36.
The plea comprises two parts. The Court of First Instance allegedly erred in law by not examining the legality of the contested decision from the point of view of compliance with the procedure laid down by the decision of 19 July 1988. ( 17 ) Secondly, in paragraph 93 of its judgment, it allegedly misdescribed the legal basis for the decision transferring the applicant. ( 18 )
37.
Regarding the first part of the plea, in inviting the Court to reject it, I need only refer to what I said earlier ( 19 ) concerning the abovementioned decision.
38.
Let us consider the second part.
39.
In paragraph 91 et seq. of its judgment, the Court of First Instance analysed the letters of 6 and 9 November 1990 to determine whether they diverged as regards the basis for the measure appointing Mr Eppe as adviser.
40.
It considered that ‘since any imprecision in the letter of 6 November 1990 was remedied in the course of the administrative procedure, there can be no question of any infringement of the second paragraph of Article 25 of the Staff Regulations’. ( 20 )
41.
That was a purely factual assessment, sufficiently enlightening Mr Eppe as to the reasons relied on by the Court of First Instance; that assessment was the sole prerogative of that court and cannot therefore be reviewed by the Court of Justice in this appeal.
42.
The plea as to breach of the obligation to state reasons must therefore be rejected.
Ill — Breach of the principle of nondiscrimination
43.
The appellant maintains that he was the victim of discrimination in that the procedure adopted for filling the post of adviser was not the one followed to fill the second executive post created when the DG VI organization chart was altered, namely that of head of the new unit, VI-04 (Promotion of agricultural products).
44.
The Court of Justice has consistently held that ‘the general principle of equality is one of the fundamental principles of the law of the Community civil service. That principle requires that comparable situations shall not be treated differently unless such differentiation is objectively justified. Clearly it requires that employees who are in identical situations shall be governed by the same rules, but it does not prevent the Community legislature from taking into account objective differences in the conditions or situations in which those concerned are placed’. ( 21 )
45.
Thus, if it were established, first, that the two posts in question were necessarily required to be filled by the same recruitment procedure and, secondly, that the appellant had received less favourable treatment than that accorded to the candidate selected for the post of new head of unit, it would be necessary to consider whether there had been any discrimination.
46.
Since no evidence has been produced on those two points, I propose that the plea be rejected.
IV — The illegality of the refusal to appoint the applicant to his previous post
47.
Is the refusal to accept Mr Eppe's candidature for his own post unlawful?
48.
The applicant so claims on the ground that, in the absence of his last staff report, there was no valid comparative examination of his merits and those of the other candidates. ( 22 )
49.
After referring to the considerable latitude available to the Community institutions in organizing their departments and assigning their staff, ( 23 ) the Court of First Instance, in paragraph 114 of its judgment, found — and its finding is not reviewable — that the appointing authority, on the basis of four points of fact which its sets out, had sufficient information to enable it reasonably to reject the applicant's candidature for his previous post, even in the absence of his latest staff report.
50.
That plea must therefore also fail.
V — Breach of the duty to have regard to the welfare of officials
51.
Let us consider, finally, the plea as to breach of the duty to have regard to the welfare of officials.
52.
After examining the memorandum from the Secretary General of 15 October and that from the Director General of 6 November 1990 ( 24 )Court of First Instance took the view that
‘In the present case, the Commission satisfied the requirements imposed on it by the duty to have regard to the interests of officials by clearly indicating to the applicant, by the letter from the Secretary General of 15 October 1990 and the letter of 6 November 1990 from the Director General, that the decision concerning him involved no judgment as to the manner in which he had discharged the duties of Head of Unit VI-BI-4 and that, on the contrary, it was simply a response to the legitimate concern to ensure that an experienced qualified lawyer undertook a first analysis and legal coordination of all the very numerous measures governing the EAGGF. By so doing, the Commission provided the applicant with a document enabling him to counteract, as far as possible, any rumours about him. Thus, the Commission's use of its wide discretion in evaluating the interests of the service on the one hand and those of the applicant on the other remained within proper bounds’. ( 25 )
53.
In taking that view, the Court of First Instance correctly interpreted the concept of the duty to have regard to the welfare of officials, the applicability of which to the facts of the case was its exclusive prerogative. Accordingly, that plea cannot be upheld.
54.
Before concluding, I shall comment on the matter of costs. It is apparent from Articles 69(2), 118 and 122 of the Rules of Procedure, read in conjunction, that in principle the unsuccessful party is to be ordered to pay the costs. However, Mr Eppe requests that the second subparagraph of Article 69(3) of those rules be applied and that the Commission be ordered to pay ‘all the costs, having unreasonably or vexatiously caused them to be incurred’. ( 26 ) The Commission, on the other hand, submits that Mr Eppe should pay not only his own costs but all the Commission's costs as well.
55.
The Commission has not shown that it has incurred ‘unreasonable’ costs. ( 27 )
56.
Nor has Mr Eppe shown that the Commission unreasonably or vexatiously obliged him to incur costs.
57.
It is therefore appropriate to follow the usual rule and order the applicant to pay the costs, Article 70 of the Rules of Procedure not being applicable to appeals by officials, by virtue of Article 122 of those rules.
58.
I therefore propose that the Court dismiss the appeal and order the applicant to pay the costs of the proceedings before the Court of Justice.
( *1 ) Original language: French.
( 1 ) Annex 6 to the notice of appeal.
( 2 ) Annex 8 to the notice of appeal (annex 1, p. 3).
( 3 ) Annex 10 to the notice of appeal.
( 4 ) Joined Cases T-59/91 and T-79/91 [1992] LCR II-2061.
( 5 ) Paragraphs 31 and 34 of the notice of appeal.
( 6 ) Paragraph 31 of the notice of appeal.
( 7 ) They are listed in paragraph 31 of the judgment.
( 8 ) Paragraph 78 of the judgment.
( 9 ) Paragraph 40.
( 10 ) Paragraph 96 of the judgment.
( 11 ) Ibid.
( 12 ) Paragraph 21 of the judgment in Case C-18/91 V. v Parliament [1992] ECR I-3997. See also, on this point, the explanatory note to Article 113 of the Rules of Procedure.
( 13 ) Paragraph.14 of the notice of appeal.
( 14 ) [1991] LCR I 4339.
( 15 ) Paragraph 29.
( 16 ) Case C 181/90 Consorgan v Commission [1992] ECR I-3557, paragraph 14.
( 17 ) Paragraph 37 of the notice of appeal.
( 18 ) Paragraph 40 of the notice of appeal.
( 19 ) Paragraphs 26 to 28 above.
( 20 ) Paragraph 95 of the contested judgment.
( 21 ) Joined Cases 152, 158, 162, 166, 170, 173, 175, 177 to 179, 182 and 186/81 Ferrario v Commission [1983] ECR 2357, paragraph 7. See most recently Case T-33/91 Williams v Court of Auditors [1992] ECR II-2499.
( 22 ) Paragraph 41 of the notice of appeal.
( 23 ) Paragraph 112 of the judgment.
( 24 ) Sec above, paragraphs 8 and 9.
( 25 ) Paragraph 67 of the judgment.
( 26 ) Concluding part of the appellant's reply.
( 27 ) Paragraph 65 of the response.
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