Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. In the context of the Community civil service, what is the nature of the obligation imposed by the first paragraph of Article 176 of the EEC Treaty on an institution whose act has been annulled by the Courts?
2. That is the principal question raised by this appeal, the background to which I shall now describe.
3. Eighteen members of the temporary staff at the European Parliament ("the Parliament"), including Mireille Meskens, brought an action in 1988 for the annulment of individual decisions by which that institution had refused to allow them to take part in an internal competition (No B/164) for the recruitment of administrative assistants.
4. The decisions were based on internal Parliament rules dating from 1979, the second paragraph of Article 3 of which provided as follows:
"Temporary staff recruited otherwise than from lists drawn up following external open competitions may not take part in internal competitions, save where there has been a special decision to that effect by the appointing authority after obtaining the opinion of the Joint Committee".
5. By judgment of 8 November 1990, which has acquired the force of res judicata, ("the first judgment"), the Court of First Instance of the European Communities annulled the contested decisions.
6. In the interim, the Parliament had, on 15 March 1989, amended the aforementioned rules: in future members of the temporary staff who had seven years' seniority were entitled to apply for such posts.
7. However, despite that amendment, which took effect on 1 April 1989, the applicants could not take part in Competition No B/164 because the tests took place on 6 March 1989.
8. Nearly two years after the first proceedings, the Court of First Instance ° this time hearing an action brought by Mrs Meskens alone ° gave a new decision on 8 October 1992 ("the second judgment") which forms the subject-matter of this appeal.
9. The contested judgment contains the facts summarized in the following paragraphs. (1)
10. Mrs Meskens' lawyer sent various letters to the Secretary-General of the Parliament to ask what measures the institution had adopted, pursuant to Article 176 of the Treaty, in order to comply with the first judgment.
11. On 19 April 1991, the Parliament replied that the new rules could be "regarded as complying with the Staff Regulations and with all the relevant Community case-law ..." and that therefore "by putting the new rules into practice the Parliament [had] satisfied its obligation under Article 176 of the EEC Treaty".
12. Mrs Meskens challenged that statement and, on 17 July 1991, sent the administrative authorities a document entitled "Complaint submitted under Article 90(2) of the Staff Regulations ... against the European Parliament' s decision refusing to adopt the necessary measures to comply with ..." the first judgment. She maintained that that decision required the Parliament to re-open the procedure for Internal Competition No B/164 for all the applicants and to have their applications reexamined by the selection board, and asked for the decision refusing to do so to be annulled, and, in compensation for the non-material damage she suffered as a result, for the award of "the sum of ECU 100 ... for each day' s delay from the submission of this complaint until the day on which the selection board for Competition B/164 reconvenes to examine her application in the light of ..." the first judgment.
13. As the Parliament did not reply within the requisite period of four months, Mrs Meskens lodged an application before the Court of First Instance headed "Action for annulment" in order to obtain
° a declaration that by failing to take the necessary measures to comply with the first judgment, the Parliament had failed to fulfil its obligations;
° an order that the Parliament should pay her the sum of ECU 100 per day from 17 July 1991 until the adoption of the requested measures.
14. The Court considered whether the new internal rules adopted by the Parliament satisfied its obligation under Article 176 of the Treaty. (2)
15. It decided that they did not. It considered, in essence, that since they were not retroactive, the rules did not alter, from the applicant' s point of view, the effect of the individual decision rejecting her candidature which was annulled by the first judgment. In her case, therefore, the Parliament should have adopted measures measures which reconciled the interests of the service with the need to make good the damage it had caused her. The refusal to do so "constitutes a breach of Article 176 of the Treaty and a service-related fault".
16. It was on that basis that after deciding that the action was one for compensation rather than for annulment (3) and dismissing the applicant' s claims relating to material damage (4) the Court of First Instance awarded her BFR 50 000 as compensation for non-material damage flowing from "the refusal of the Secretary-General (of the Parliament) to take any specific measure to eliminate the consequences of the decision annulled", that refusal being of "such a kind as to make the applicant uncertain and anxious with regard to her future at work". (5)
17. The Parliament puts forward four pleas in law in support of its appeal.
18. It denies, first of all, the service-related fault attributed to it by the Court. Far from having infringed Article 176 of the Treaty, it discharged its obligations under that provision entirely by amending, even before the pronouncement of the first judgment, the rules upon which the decision annulled by that judgment was based.
19. Mrs Meskens endeavours to refute that merely by stating that the Parliament, although bound by Article 176 of the Treaty to take the necessary measures to comply with the first judgment, refused to do so.
20. There are instances where implementing Article 176 poses no problem. Take the following case: the appointing authority wrongly considers that a member of its staff cannot receive a promotion based on length of service. It refuses to uphold his request to that effect and his subsequent complaint. The decision is challenged in the Court of First Instance, which annuls it. The appointing authority then complies with the judgment by re-establishing the rights of the person concerned as from the day on which they were created.
21. However, there are cases ° as is shown by the case before you ° where compliance with the judgment poses more complex problems, in particular because interests other than those of the applicant are involved.
22. Must an institution annul a competition because a candidate was unfairly denied the opportunity to take part? Such a measure ° which, however, was not requested in the present case ° would seriously hamper the working of the institution and unfairly injure the admitted candidates who had not acted improperly. It could also have adverse affects on the users of the institution: irregularities could taint the acts taken in the course of their new duties by the successful candidates in a competition which gave access to posts of responsibility. Furthermore, the Court has been mindful in its decisions of the need to maintain a fair balance between the interests of the service and those of injured officials. (6)
23. The institutions must certainly seek a solution which wholly compensates the damage suffered by a candidate who has unlawfully been prevented from taking part in a competition. If a sort of "restitutio in integrum" does not prove possible, and if, in the absence of means of doing so, the appointing authority does not achieve total compensation, the residual damage ° of which the person claiming to be affected must establish the existence and magnitude ° must be compensated by way of damages together with interest.
24. That is, after all, the meaning of the second paragraph of Article 176, which provides:
"This obligation (to take the necessary measures to comply with the annulling judgment) shall not affect any obligation which may result from the application of the second paragraph of Article 215"
in connection, as we know, with the Community' s non-contractual liability.
25. That is precisely where the fault lies in the contested decision. I am not saying that the adoption of the new rules did not cause Mrs Meskens damage for which the Parliament may bear non-contractual liability. I merely say that, in order to impute this residual damage to an infringement by the Parliament of its obligation under the first paragraph of Article 176, the Court of First Instance should, whilst refraining from encroaching upon the institution' s powers, have specified the additional measure which the Parliament was to take in order to achieve full compensation.
26. The suggestions put forward by the Court of First Instance "by way of illustration" in paragraphs 79 and 80 of its judgment do not fulfil that requirement. The organization of new tests open to all staff of the institution, or to the 18 applicants in the first case, would have been likely to raise difficulties which justified the Parliament' s not doing so. As regards establishing a "dialogue" with Mrs Meskens "in order to attempt to reach agreement offering her fair compensation for the unlawfulness of which she had been the victim", that might be desirable, but it would have constituted an exploratory step and not a "measure" within the meaning of the first paragraph of Article 176 of the Treaty, that is to say, an act with legal effects.
27. To summarize: if an action had been brought under the second paragraph of Article 176 of the Treaty the Court of First Instance could have considered, pursuant to the second paragraph of Article 215 to which Article 176 refers, whether despite the new rules passed by the Parliament Mrs Meskens had suffered residual damage as a result of the measure annulled by the first judgment, and could have ordered compensation by way of an award of damages together with interest.
28. It could not, however, impute to the Parliament a service-related fault resulting from an infringement of the first paragraph of Article 176 without determining the measure or measures with legal effects which that institution was bound to take in order to comply fully with the first judgment.
29. The contested judgment is therefore open to criticism by the Court and I propose that it be annulled.
30. It is therefore ex abundantia cautelae that I propose to examine the other pleas in law relied on by the Parliament, that is to say infringement of
° Article 33 of the Statute of the Court of Justice,
° Articles 4, 27 and 29 of the Staff Regulations of Officials of the European Communities,
° Articles 90 and 91 of those regulations.
31. Relying on Article 33 of the Statute of the Court of Justice, the Parliament complains that in paragraphs 69 to 71 of the contested judgment the Court of First Instance did not give the grounds for its decision "in an appropriate and lawful manner". More particularly, it complains that the Court proceeded to make an analysis of its previous judgment although its composition was now different, an analysis which it was only competent to make in the context of an application for interpretation of a judgment.
32. There is no need to discuss at length the limb of the plea based on the composition of the Court, which the Parliament' s lawyer abandoned in any event at the hearing. It is hard to see how, without leading to a denial of justice, a legal forum may be prohibited from interpreting a decision which it gave previously, even if composed differently. For example, could the fact that a judge was unavailable, had retired or died deprive a party of legal recourse?
33. With regard to the second limb, reference must be made to the wording of Article 40 of the Statute of the Court of Justice, relating to the interpretation procedure. That article provides that "if the meaning or scope of a judgment is in doubt, the Court shall construe it on application by any party or any institution of the Community establishing an interest therein". Clearly, it applies if new proceedings have not been instigated, but it does not prohibit the Court of First Instance from interpreting one of its previous decisions in order to decide a new action between the same parties. Furthermore, paragraph 69 of the contested judgment makes it clear that it was the Parliament itself which caused such an interpretation to be necessary. By submitting in response to Mrs Meskens' new claim the defence that "it was unnecessary to take specific measures because the Court rejected, in (the first judgment), by implication, the applicants' request to authorize them to take part in" Competition B/164, the Parliament put the Court in the position of having to interpret its previous decision in order to assess the merits of that defence.
34. It follows that that plea must be dismissed.
35. Relying on Articles 4, 27 and 29 of the Staff Regulations of Officials of the European Communities, the Parliament complains that in the contested judgment, and especially in paragraphs 79 and 80, the Court interfered in an unwarranted manner in matters which come under the appointing authority' s exclusive powers.
36. That submission is futile. The specific measures described by the Court were offered "by way of illustration", (7) after a statement that it could not "substitute itself for the administrative authority", (8) and there were no injunctions of any sort attached to them.
37. There remains the plea of infringement of Articles 90 and 91 of the Staff Regulations, to which the Parliament adds the following complaint: by describing the action before it as an action for damages, the contested judgment had "clearly distorted the sense of the applicant' s claims". The plea in law therefore has two limbs.
38. With regard to the complaint of distortion, I note that in her application, the substance of which I have already summarized, (9) Mrs Meskens claimed that the Court of First Instance should:
"(1) declare that by failing to take the necessary measures to comply with the judgment of the Court of First Instance of the European Communities of 8 November 1990 in Case T-56/89, the European Parliament had failed to fulfil its obligations;
(2) order the European Parliament to pay the applicant the sum of ECU 100 per day from 17 July 1991, the day on which she submitted the complaint, until the day when the necessary measures to comply with the judgment are taken;
(3) order the defendant to pay the costs."
39. Although the action was wrongly entitled "Action for annulment", such an action should be regarded as an action for damages, as the Court rightly did after having asked the applicant to specify the subject-matter of her application. (10) It is not for the annulment of an administrative measure, but for the payment of a sum of money.
40. Furthermore, as it is a financial claim, the Court of First Instance has unlimited jurisdiction under the last sentence of Article 91(1) of the Staff Regulations.
41. It is clear from the Court' s case-law on Community civil service that in this sphere the Court ° and therefore, since its creation, the Court of First Instance ° has
"... even in the absence of proper [claims] to that effect, the power not only to annul but also, if need be, of its own motion to order the defendant to pay compensation for the non-material damage caused by a wrongful act or omission on its part" (11)
and also that in such a case,
"... the Court may, having regard to all the circumstances of the case, assess the damage ex aequo et bono". (12)
42. I will now turn to the other limb of the plea.
43. I have referred to the exchange of correspondence which occurred, following the first judgment, between Mrs Meskens' lawyer and the Parliament. (13)
44. By stating in its letter of 19 April 1991 that by putting the new internal rules into practice "the Parliament has satisfied its obligation under Article 176 of the EEC Treaty" the Parliament indirectly but clearly notified the applicant of its final decision not to take any other measure.
45. Consequently, the Court was correct to consider that the letter of 17 June 1991 from Mrs Meskens to the Parliament (14) was a complaint against an act adversely affecting her.
46. I repeat, however, that I have considered the second, third and fourth pleas ex abundantia cautelae and that I considered that the first plea submitted by the Parliament in support of its appeal was well founded.
47. I therefore propose that the Court should:
° annul the judgment delivered on 8 October 1992 by the Court of First Instance (Fifth Chamber) in Case T-84/91;
° order Mrs Meskens to pay the costs of this appeal, save those relating to the intervention, which must be borne by the intervener.
(*) Original language: French.
(1) - Paragraphs 10 to 13.
(2) - Paragraphs 76 to 81 of the second judgment.
(3) - Paragraph 28 of the second judgment.
(4) - Paragraphs 83 to 88 of the second judgment.
(5) - Paragraphs 89 to 92 of the second judgment.
(6) - Judgment in Case 144/82 Detti v Court of Justice [1983] ECR 2421, paragraph 33.
(7) - Paragraph 79.
(8) - Ibidem.
(9) - Paragraph 13, above.
(10) - Paragraph 28 of the contested judgment.
(11) - Judgment in Case 24/79 Oberthuer v Commission [1980] ECR 1743, paragraph 14.
(12) - Judgment in Joined Cases 176/86 and 177/86 Houyoux and Guery v Commission [1987] ECR 4333, paragraph 16.
(13) - Paragraphs 10 and 11, above.
(14) - See above, paragraph 13.
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