ORDER OF THE GENERAL COURT (Appeal Chamber)
4 September 2012 (*)
(Appeals – Civil service – Officials – Appointment – Classification in grade – Competition published before the entry into force of the new Staff Regulations of Officials – Distortion of the facts – Appeal manifestly unfounded)
In Case T-642/11 P,
APPEAL against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2011 in Case F-93/05 Mische v Parliament [2011] ECR-SC and seeking to have that judgment set aside,
Harald Mische, official of the European Commission, residing in Brussels (Belgium), represented by R. Holland, J. Mische and M. Velardo, lawyers,
appellant,
the other parties to the proceedings being
European Parliament, represented by S. Seyr and S. Alves, acting as Agents,
defendant at first instance,
Council of the European Union, represented by A. Jensen and J. Herrmann, acting as Agents,
intervener at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger (Rapporteur), President, I. Pelikánová and A. Dittrich, Judges,
Registrar: E. Coulon,
makes the following
Order
1 By his appeal lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, Mr Harald Mische, seeks to have set aside the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2011 in Case F-93/05 Mische v Parliament [2011] ECR-SC (‘the judgment under appeal’) by which the Civil Service Tribunal dismissed his action seeking, first, annulment of the decision of the European Parliament of 4 October 2004 appointing him an official, in so far as it established his grade at A*6, step 1, second, the reinstatement of his rights deriving from a legal grading, that is to say, at grade A 7, step 3, or its equivalent, A*8, step 3, and third, the payment of damages to make good the harm caused to his career.
Facts giving rise to the dispute
2 The facts of the case are set out at paragraphs 3 to 11 of the judgment under appeal, as follows:
‘3 On 23 May 2002 the European Parliament published in the Official Journal of the European Communities (OJ 2002 C 120 A, p. 11) Notice of Open Competition PE/96/A to constitute a reserve of German-language administrators in career bracket A7/A6 …
4 The applicant entered that competition and his name was included on the reserve list adopted on 27 May 2004. In the meantime, that is to say, on 1 November 2002, he had been recruited to the Commission’s Competition Directorate-General (DG) as a member of the temporary staff at grade A 7, step 2. From 1 May 2004, he worked as a member of the auxiliary staff within the same Directorate-General.
5 On 25 June 2004 DG Competition published a notice of vacancy for a category A post, for which the applicant applied. It is not disputed that the DG requested the recruitment of the applicant to the post in question on 22 July 2004 and that, by letter of 19 August 2004, the Commission asked the Parliament to appoint him as a probationary official and transfer him simultaneously. The Commission’s DG Personnel and Administration and the applicant exchanged emails in September 2004 concerning the applicant’s grading; the DG envisaged his recruitment at grade A*6, step 2, as of 16 November 2004.
6 By decision of 4 October 2004, which took effect on 16 November 2004, the Parliament appointed the applicant as a probationary official at grade A*6, step 1, and transferred him to the Commission.
7 By letter of 8 November 2004, the Commission informed the applicant that the Parliament had agreed to his recruitment and simultaneous transfer and, accordingly, officially offered him a post as a probationary official in DG Competition at grade A*6, step 2, on a basic salary of EUR 4 492.73. In the same letter, the Commission noted that the applicant, who was still working in that Directorate-General, was available to continue working under his new status from 16 November 2004 and confirmed that he would be considered to be an official of the Commission from that date.
8 By decision of 11 November 2004, which took effect on 16 November 2004, the Commission took the formal decision to assign the applicant to a post as an administrator (probationary official) at grade A*6, step 2, in DG Competition.
9 The Commission notified the applicant of its decision of 11 November 2004 on 24 November 2004 and annexed to that decision a copy of the decision of the Parliament of 4 October 2004 appointing him as a probationary official and transferring him to the Commission.
10 By letter of 23 February 2005, received by the administration on 25 February 2005, the applicant lodged a complaint with the Parliament against the decision of 4 October 2004. The Parliament rejected that complaint on 10 June 2005.
11 In addition, after lodging a complaint with the Commission on 18 February 2005 against the decision of 11 November 2004, which was rejected on 13 April 2005, the applicant brought an action against that decision, which was registered by the Court of First Instance as Case T-288/05 before being transferred to the Civil Service Tribunal where it was registered as Case F-70/05.’
Proceedings at first instance and judgment under appeal
3 By application lodged at the Registry of the Court of First Instance on 26 September 2005, the applicant sought annulment of the decision of the European Parliament of 4 October 2004 appointing him as an official in so far as it determines his grade to be A*6, step 1 (‘the contested decision’), reinstatement of all his rights deriving from the correct grading, that is to say at grade A 7, step 3, or its equivalent, grade A*8, step 3, and the award of damages to make good the harm caused to his career.
4 In support of his claim for annulment of the contested decision, the applicant relied, inter alia, on the illegality of Article 12 of Annex XIII to the Staff Regulations of Officials of the European Communities, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (‘the Staff Regulations’ or ‘the new Staff Regulations’), in so far as his illegal grading on the basis of that article of the new Staff Regulations infringed the principle of equal treatment, the principle of legal certainty, the principle of non-retroactivity, his acquired rights and his legitimate expectations.
5 By order of 30 November 2005, the Council of the European Union was granted leave to intervene in the case in support of the claims of the Parliament, both those parties seeking the dismissal of the action.
6 By order of 21 December 2005, the Court of First Instance, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), referred the present case to the Tribunal. The action was registered at the Registry of the Civil Service Tribunal as Case F-93/05.
7 In response to the defence at first instance, which contended, inter alia, that the action was inadmissible, the applicant sought and was granted leave to submit a reply. However, as that reply was not lodged until after the time-limit set for that purpose had expired, the Civil Service Tribunal decided to declare it inadmissible and the applicant was informed of this by letter from the Registry of 8 February 2010.
8 In its preparatory report for the hearing, the Civil Service Tribunal asked the parties to concentrate their argument, first, on the question whether the action was out of time and, second, on the question whether the action actually had a purpose, given that, in their pleadings concerning Case F-70/05 Mische v Commission, the applicant and the Commission took the view that the Commission was the institution which determined the applicant’s grade. Moreover, Cases F-70/05 and F-93/05 were joined for the purposes of the oral procedure.
9 In the judgment under appeal, the Civil Service Tribunal found that the applicant was recruited by the Parliament, at the express request of the Commission, solely in order to fill a vacant post in the Competition Directorate-General (DG) where the applicant was already working, that the Commission took a particularly active part in determining his grade and step and in setting his actual date of recruitment as a probationary official and that the Commission took the initiative to notify him of its decision of 11 November 2004, together with that of the Parliament of 4 October 2004, on 24 November 2004, ‘as the applicant concedes in his document initiating the proceedings’ (paragraph 23 of the judgment under appeal).
10 The Civil Service Tribunal drew the conclusion that, so far as the applicant’s grade and step were concerned, the Parliament’s decision of 4 October 2004 was only formally attributable to it and that the Commission’s decision of 11 November 2004 had replaced it (paragraph 24 of the judgment under appeal). In those circumstances, pointing out that the purpose of the action must exist at the time at which the action is brought, failing which it will be inadmissible, and must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it, the Civil Service Tribunal found that those conditions were not met in the present case (paragraph 27 of the judgment under appeal).
11 The Civil Service Tribunal added, in paragraph 28 of the judgment under appeal, that the action was inadmissible since the complaint which preceded it was lodged out of time. In that regard, the Tribunal reasoned as follows:
‘29 In that connection, it is to be observed that the Parliament’s decision of 4 October 2004 was attached to the Commission’s notification of its own decision of 11 November 2004, that that notification took place on 24 November 2005 and that the complaint against the abovementioned decision of the Parliament was lodged on 25 February 2005, a complaint being “lodged” not when it is sent to an institution, but when it is received by it (see, to that effect, judgment of 26 November 1981 in Case 195/80 Michel v Parliament, paragraphs 8 and 13, and of 13 December 2007 in Case F-73/06 Van Neyghem v Commission, paragraph 43). With regard to the date on which the three-month time-limit expires, according to established case-law the period provided for in Article 90(2) of the Staff Regulations expires at the end of the day which, in the third month, bears the same number as the day of the event or measure from which time was set running (see, to that effect, judgment of 15 January 1987 in Case 152/85 Misset v Council, paragraphs 8 and 9, and Van Neyghem v Commission, paragraph 45). Thus, according to that case-law, the period of three months expired in this case on Thursday, 24 February 2005, that is to say, one day before the complaint was lodged.
30 That conclusion is not undermined by the fact that the applicant received the Parliament’s decision of 4 October 2004 through the intermediary of the Commission. Since Article 90(2) of the Staff Regulations provides that although the period of three months normally runs from “the date of notification of the decision to the person concerned”, it starts “in no case later than the date on which the latter received such notification”, that wording must be interpreted as meaning that the period runs from the day on which the official became aware of the reasoning and content of the operative part of the decision (judgment of 3 June 1997 in Case T-196/95 H v Commission, paragraph 31), which in the present case was on 24 November 2004.
31 In the light of all the foregoing, it must be held that the applicant’s first head of claim, seeking annulment of the Parliament’s decision of 4 October 2004, determining his grade to be A*6, step 1, is inadmissible.
32 In consequence, the other heads of claim, which are all closely linked to the first, must also be held to be inadmissible.’
12 Consequently, the action was dismissed in its entirety.
The appeal
Procedure and forms of order sought
13 By document lodged at the Registry of the General Court on 8 December 2011, the appellant brought the present appeal.
14 The appellant claims in essence that the Court should:
– set aside the judgment under appeal;
– uphold the claims submitted at first instance;
– order the Parliament to pay the costs incurred in the proceedings at first instance and in the appeal proceedings;
– in the alternative, set aside the judgment under appeal and refer the case back to the Civil Service Tribunal.
15 In its reply, lodged at the Court Registry on 8 May 2012, the Parliament contends that the Court should:
– dismiss the appeal as being partly inadmissible and, at any event, unfounded;
– order the appellant to pay the costs of the proceedings.
16 In its reply, lodged at the Court Registry on 11 May 2012, the Council contends that the Court should:
– dismiss the appeal;
– order the appellant to pay the costs.
Law
17 Under Article 145 of its Rules of Procedure, where the appeal is clearly unfounded, the General Court may at any time dismiss the appeal by reasoned order, even where a party has asked the Court to hold a hearing (see, to that effect, order of 10 March 2008 in Case T-233/07 P Lebedef-Caponi v Commission, not published in the ECR, paragraphs 21 and 22). In this case, the Court considers that it has sufficient information from the documents before it and decides, under that article, not to take further steps in the proceedings.
18 The appellant puts forward three pleas on appeal.
19 The first plea on appeal is directed against the part of the judgment under appeal in which the Civil Service Tribunal held that the claim for annulment of the contested decision was inadmissible because the complaint lodged by the appellant prior to the litigation was out of time. The second plea alleges an error of law by the Civil Service Tribunal when it held that claim inadmissible because it was not liable to procure an advantage for the appellant since his grade and step were in fact determined by the Commission and not by the Parliament. By the third plea, the appellant complains that the Civil Service Tribunal was wrong to reject the claim for damages as inadmissible.
The first and second pleas on appeal, directed against the rejection of the claim for annulment of the contested decision
20 By his first plea on appeal, directed against paragraphs 9, 23 and 28 to 31 of the judgment under appeal, the appellant claims that the Civil Service Tribunal distorted evidence and vitiated its findings by substantive inaccuracy, in basing the judgment under appeal on the erroneous finding that a copy of the contested decision was sent to him on 24 November 2004. According to him, the Civil Service Tribunal also made an error of law consisting in an insufficient statement of reasons, in ignoring the fact that the application at first instance contained a simple drafting error which was, moreover corrected in the course of proceedings, as the judgment under appeal was silent as to that correction. He also criticised the Civil Service Tribunal for respecting neither the burden of proof nor the procedural rules relating to proof. As the Parliament relied on the fact that the action was out of time, it should have adduced evidence thereof, but did not do so. However the Civil Service Tribunal failed to draw the necessary inferences.
21 In that connection the appellant states that there was a drafting error in the last sentence of paragraph 31 of the application at first instance (indicating that the contested decision was attached to the Commission decision of 11 November 2004), whereas the facts were correctly stated at the start of that paragraph, where it is indicated that he received the contested decision by fax on 8 February 2005. Any attentive reader could have spotted that error, particularly as it is apparent from annexes A.30 and A.31 of the application at first instance, to which paragraph 31 refers, that the contested decision was received by fax only on 8 February 2005. The appellant points out that the drafting error in question was, in any event, corrected: first, in paragraph 12 of the reply he lodged in Case F-70/05 Mische v Commission, as the application at first instance in that case contained an error identical to the one described above and, second, at the hearing in Joined Cases F-70/05 and F-93/05.
22 The appellant adds that, as regards the identification of the sender of the contested decision by fax, an email of 8 February 2005 suggests that he was in contact that day with Ms D of DG Personnel and Administration of the Commission who was in charge of his file. The same day, he received a copy of the contested decision by fax. In her role as the person in charge of the appellant’s file, Ms D did not have a copy of the contested decision. She could not, therefore, have sent it before 8 February 2005. The appellant relies, further, on an additional contemporaneous document, namely an email of 21 February 2005, in which he stated that he received the contested decision a long time after the appointment was decided and only at his request. He states that he learned that the Commission does not generally notify or transmit Parliament decisions on transfer, which is why the appellant had to request the transmission of the contested decision on 8 February 2005, which the Civil Service Tribunal failed to consider. Finally, he produced extracts from his personal file, suggesting that the appeal court should access the file in order ‘to convince itself that the documents attached reflect the truth’.
23 On that point, it must be observed at the outset that the finding of the Civil Service Tribunal that the contested decision was attached to the appointment decision sent to the appellant on 24 November 2004 is a finding of fact.
24 Under Article 257 TFEU and Article 11(1) of Annex I to the Statute of the Court, an appeal to the General Court is limited to points of law. According to settled case-law, the court of first instance alone has jurisdiction to find the facts, save where the factual inaccuracy of its findings results from the documents in the case before it, and to appraise those facts, save where the clear sense of the evidence produced before it is distorted, and such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence, and without recourse to new evidence; the Court has also accepted, in an appeal, a claim of an incomplete examination of the facts (see Case T-377/08 P Commission v Birkhoff [2009] ECR-SC I-B-1-133 and II-B-1-807, paragraphs 45 and 46, and Case T-98/11 P AG v Parliament [2012] ECR-SC).
25 In the present case, as is apparent from paragraph 23 in fine of the judgment under appeal, the Civil Service Tribunal concluded that the complaint was out of time on the basis of the wording of the application at first instance. In the last sentence of that application, the appellant expressly stated that the decision appointing him an administrator in grade A*6, step 2, ‘according to a transfer “de grade A *6 auprès du Parlement” … (of 4 October 2004)’ was ‘served upon [him] on 24 November 2004 by the Commission together (annex A.30) with a decision of the … Parliament dated 4 October 2004 transferring [him] to the Commission (annex A.31)’.
26 In going on, in paragraphs 9, 23 and 30 of the judgment under appeal, to make the finding that the contested decision was attached to the appointment decision sent to the appellant on 24 November 2004, the Civil Service Tribunal in no way distorted the clear and precise meaning of that sentence in paragraph 31 of the application at first instance. Consequently, the Civil Service Tribunal was entitled to consider that the appellant should be deemed to have knowledge of that decision from that date.
27 That conclusion is not undermined by the argument based on the contradictions vitiating paragraph 31 which allegedly precluded the finding of fact at issue. Although it is true that paragraph 31 of the application at first instance contains a sentence according to which ‘[o]n 8 February 2005, the Appellant received by fax the nomination decision of the Parliament of 4 October 2004’, that wording does not rule out the possibility that the contested decision was sent twice, that is to say, first, informally, by the Commission in November 2004 to explain the appointment decision it had made, as that decision referred to a transfer of the appellant as an ‘administrator (probationary official) in grade A*6 with the Parliament’, and again, officially, in February 2005 by the Parliament itself in its capacity as the author of the contested decision. Moreover, the circumstances in which the decision was sent twice were expressly described in paragraphs 8 and 9 of the preparatory report for the hearing of the Civil Service Tribunal, which demonstrates that, contrary to what the appellant appears to argue, the approach taken in the judgment under appeal is not based on an incomplete and selective reading of the application at first instance.
28 It must be added that the finding of fact at issue was based on an allegation made by the appellant himself in the application at first instance and that that allegation was not disputed by the other party during proceedings. In those circumstances the Civil Service Tribunal had no reason to have recourse to the applicable rules on the burden and administration of proof, particularly as the issue was the admissibility of the action which had to be raised by the Tribunal of its own motion (see, to that effect, Case C-246/95 Coen [1997] ECR I-403, paragraph 21, and Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services v Commission [1997] ECR II-1355, paragraphs 38 and 39). Consequently, the appellant’s argument alleging a breach of those rules is wholly irrelevant.
29 As regards the complaint of a distortion of Annex A.31 to the application at first instance – which was a fax of the contested decision by which the Parliament appointed the appellant a probationary official in grade A*6, step 1, and transferred him to the Commission, all with effect from 16 November 2004 – the appellant takes the view that the date of 8 February 2005 printed on that fax should have prevented the Civil Service Tribunal from finding that the contested decision reached him on 24 November 2004.
30 In that regard, it must be observed that, as is apparent from the acknowledgment of receipt of the decision appointing the appellant (Annexes A.29 and A.30 to the application at first instance), the communication of that decision – to which, according to the finding of fact at issue, the Commission attached the contested decision – was effected, not by fax, but by normal post, which suggests that the contested decision attached to that decision was also communicated by normal post and not by fax. It follows that the date printed on the faxed copy of that decision did not compel the Civil Service Tribunal to take the view that the decision reached the appellant only on 8 February 2005 and not on an earlier date. It is probable that it appeared sufficient to the appellant to attach to the application at first instance only the faxed copy of the contested decision which the Parliament ‘officially’ sent on 8 February 2005, while it was pointless to attach a second document with the same content, that is to say, a copy of the contested decision as informally sent by way of explanation of the appointment decision. In those circumstances, the fact that the faxed copy at issue bears the date of 8 February 2005 does not mean that the Civil Service Tribunal distorted the meaning of that document in making the finding of fact at issue.
31 The appellant argues, further, that the contested sentence in paragraph 31 of the application at first instance was the result of a drafting error which he corrected before the judgment under appeal was delivered, but that the Civil Service Tribunal ignored that correction, which means that its findings are vitiated by a substantive inaccuracy and by a failure to state reasons.
32 However, it must be observed that neither the wording of the application at first instance, nor that of the judgment under appeal, nor indeed the official minutes of the public hearing – which constitute a public record under Article 53 of the Rules of Procedure of the Civil Service Tribunal – contain the least sign of an attempt at correction as described by the appellant. It must be borne in mind that the reply which the appellant lodged before the Civil Service Tribunal was declared inadmissible (see paragraph 7 above), and the fact that the Civil Service Tribunal dismissed that document does not form part of the subject-matter of the present appeal. Accordingly, the complaint of a substantive inaccuracy regarding the alleged correction cannot be upheld. The same applies to the complaint of a failure to sate reasons, given that the documents on the file put before the Civil Service Tribunal do not record any correction.
33 In so far as the appellant refers to a text (transcription) which he alleges served to assist him in his argument before the hearing at first instance, the unreliable nature of such a unilaterally drafted document must be stressed, which means that it is not possible to consider it to be sufficient evidence of the content of the hearing. In any event, that document does not constitute a document before the Court within the meaning of the case-law cited in paragraph 24 above. In order to obtain an authentic procedural document, the appellant could have requested the entry of a mention in the official minutes of the hearing from which it would be apparent that the drafting error had been corrected. However, the appellant does not allege that he made such a request for an entry, nor that his request was refused by the Civil Service Tribunal.
34 In so far as the appellant refers to paragraph 12 of the reply lodged in Case F-70/05 Mische v Commission to demonstrate that he had corrected before the Civil Service Tribunal the alleged drafting error which was the same as the error in paragraph 31 of the application lodged in Case F-93/05, it is true that the paragraph to which he refers seeks to correct ‘the last sentence … to read: “[the appointment decision] was served upon the Applicant on 24 November 2004 by the Commission (annex A.30). The decision of the European Parliament dated 4 October 2004 transferring the Applicant to the Commission was faxed to the Applicant on 8 February 2005 (annex A.31)”’.
35 However, the appellant cannot validly claim that the Civil Service Tribunal had to take account, for the purposes of the judgment adopted in Case F-93/05, of the correction appearing in the reply lodged in Case F-70/05 and set out incidentally under the heading of ‘[f]acts’ in the case. Although the two cases were joined for the purposes of the oral procedure (see paragraph 8 above), it is not apparent from the file at first instance that the appellant referred, at the hearing, to paragraph 12 of the reply lodged in Case F-70/05 (see paragraph 32 above). In those circumstances, the Civil Service Tribunal was not required to take into account of its own motion that document included in the file in another case, particularly as the European Union judicature is not even required to seek to ascertain from all the facts and evidence relied on by one party in support of a plea in law whether those facts and evidence may also be relied on in support of another plea in law in the same case (see, to that effect, Case T-38/10 P Marcuccio v Commission [2010] ECR-SC, paragraph 45 and the case-law cited; Case C-480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I-265, paragraph 33).
36 Consequently, the Civil Service Tribunal cannot be criticised for making an incomplete assessment of the facts within the meaning of the case-law cited in paragraph 24 above, by failing to take account of its own motion in Case F-93/05 of paragraph 12 of the reply lodged in Case F-70/05.
37 Finally, as regards the inquiries the appellant claims to have made, inter alia, of a Ms D in the Commission, in order to identify the ‘real’ sender of the faxed copy of the contested decision (see paragraph 22 above), suffice it to observe that those are facts which were raised for the first time at the stage of the appeal. Given that those arguments were never put before the Civil Service Tribunal, they must be declared manifestly inadmissible, particularly as they would require the appeal court to make findings of fact, whereas the court of first instance alone has jurisdiction to find and appraise the facts (see paragraph 24 above). The appeal court’s jurisdiction is confined to review of the assessment by the court of first instance of the pleas argued before it (see Case C-414/08 P Sviluppo Italia Basilicata v Commission [2010] ECR I-2559, paragraph 114 and the case-law cited). Nor can reliance be placed on the evidence, namely the emails of 8 and 21 February 2005 and the extracts from his personal file, which the appellant produced for the first time before the appeal court in order to substantiate the result of the above mentioned inquiries. To allow a party to adduce for the first time on appeal evidence which it has not produced at first instance would in effect allow that party to bring before the appeal court, whose jurisdiction in appeals is limited, a case wider in ambit than that heard by the court of first instance (see Sviluppo Italia Basilicata v Commission, paragraph 114 and the case-law cited).
38 Consequently, the first plea on appeal, directed against the rejection of the claim for annulment of the contested decision and alleging a distortion and an incomplete examination of the facts, a substantive inaccuracy and a failure to state reasons, must be rejected as manifestly unfounded.
39 As regards the second plea on appeal, directed against the rejection of the claim for annulment of the contested decision, it is clear from settled case-law that, where one of the grounds adopted by the Civil Service Tribunal is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, to that effect, Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraph 68 and the case-law cited).
40 In the present case, it appears from paragraphs 27, 28 and 31 of the judgment under appeal that the Civil Service Tribunal based the inadmissibility of the head of claim seeking the annulment of the contested decision on two distinct grounds: first it held that this head of claim, given its purpose – that is, the annulment of the contested decision – was not such as to procure an advantage for the appellant; second, it held it to be inadmissible because the complaint preceding the action was lodged late.
41 As is apparent from paragraphs 24 to 38 above, the plea on appeal concerning the second ground upheld by the Civil Service Tribunal must be rejected, given that that ground was, in itself, sufficient to justify the rejection, in paragraph 31 of the judgment under appeal, of the claim seeking annulment of the contested decision as inadmissible.
42 Accordingly, the second plea on appeal must be rejected as unfounded.
The third plea on appeal, directed against the claim for damages
43 The appellant submits that paragraph 32 of the judgment under appeal is vitiated by an inadequate statement of reasons and an error of law. He alleges that the paragraph was not drafted in a sufficiently clear and full manner to enable the appellant to identify the ground which actually justified the rejection by the Civil Service Tribunal of the claim for damages. In any event, he alleges that the Parliament committed several clear breaches of the principle of the right to good administration provided for by Article 41(1) of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389), inter alia by communicating incorrect information and because of the excessive length of the procedure in Competition PE/96/A, pointing out that the right to damages arises under Article 41(3) of that Charter. Moreover, the Parliament did not respect the obligations incumbent on it under Article 5(5) of the new Staff Regulations, of imposing the same conditions of recruitment on officials belonging to the same function group.
44 The Parliament does not respond to this plea, although it takes the view that the appellant’s claim for a ruling on the substance of the claim for damages lodged before the Civil Service Tribunal must be rejected as inadmissible, given that the state of the proceedings does not permit final judgment to be given, since the Civil Service Tribunal confined itself to dismissing the action as inadmissible and did not give judgment on the substance.
45 On that point, it must be observed that the Civil Service Tribunal, having declared the first head of claim seeking annulment of the contested decision inadmissible, confines itself to concluding, in paragraph 32 of the judgment under appeal, that ‘[i]n consequence, the other heads of claim, which are all closely linked to the first, must also be held to be inadmissible’. In so doing, the Civil Service Tribunal neither breached its obligation to state reasons nor made an error of law.
46 While the Civil Service Tribunal is under an obligation to state the reasons on which its judgments are based, in accordance with Article 36 of the Statute of the Court of Justice, which is applicable to it pursuant to Article 7(1) of Annex I to that Statute, that obligation does not require it to provide an account which covers exhaustively and one by one all the arguments put forward by the parties to the dispute. The reasoning may be implicit on condition that it enables the persons concerned to know why the court of first instance has not upheld their pleas in law or arguments and provides the appeal court with sufficient material for it to exercise its power of review (see Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission [2008] ECR I-6513, paragraph 96, and Case C-431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I-2665, paragraph 42).
47 In the present case, the application at first instance sought, first, ‘the cancellation of the grading given in the [contested decision] which was to take effect 16 November 2004 to grade him A*6, step 1, implying the reinstatement of all his rights as deriving from a legal and regular employment, i.e. a legal and regular grading as of 16 November 2004, which means at minimum an A7/3 grading (valid as of 1 November 2003) or its equivalent according to Articles 1-11 of Annex XIII of the Staff Regulation (A*8/3)’. However, it is clear that the head of claim seeking the ‘reinstatement of all his rights as deriving from a legal and regular employment, i.e. a legal and regular grading as of 16 November 2004 …’ is closely linked to that seeking the annulment of the contested decision, in that it specifies the inferences to be drawn from such annulment so as to make good the effects of the alleged illegality. Because of that close link, the Civil Service Tribunal could, without making an error of law or breaching its duty to state reasons, confine itself to declaring that latter head of claim inadmissible for the same reasons as the previous one.
48 In so far as the appellant sought also ‘the award … of damages with intérêts de retard, as compensation for his prejudice to his career, and … other damages in form of a legal and regular pay, notably the application of the transitional provision contained in Article 21 of Annex XIII of the Staff Regulation in force as of 1 May 2004 or, alternatively, the lowering of contributions to the pension scheme based on the principle of equal pay’, it is apparent from the wording of the application at first instance (paragraphs 123 and 124) that even that head of claim, although presented as a claim for damages, in fact – like the head of claim seeking reinstatement of the appellant in his rights – concerned the implementation of the annulment of the contested decision, in terms of the reinstatement of the appellant in all his rights deriving from a legal and regular employment as regards his remuneration and his pension rights.
49 As is made clear in the summary of the application at first instance, the appellant complained, in support only of his claim for annulment, both of the partial illegality of the new Staff Regulations – including the arbitrary and illegal nature of the Parliament’s decision to delay the completion of the procedure for Competition PE/96/A (paragraph 85 in fine of the application at first instance) – and of the breach of the principle of good administration, the principle of due diligence, the principle of transparency, the principle of good faith and the principle of equal treatment and non-discrimination, and it is in the context of his claim for annulment that he criticises the Parliament for not having informed him of the serious consequences which the new Staff Regulations would have for his recruitment and the subsequent course of his career (paragraph 118 of the application at first instance).
50 It is thus clear that, at first instance, the appellant relied on maladministration by the Parliament, in the form of delays in the procedure in Competition PE/96/A and a lack of information, in order to establish the illegality of the contested decision, and that his claim for damages to make good the loss suffered was intended to specify the measures entailed, pursuant to Article 266 TFEU, by the implementation of a judgment annulling the decision so as to compensate for the consequences of the alleged illegality. Consequently, the Civil Service Tribunal was entitled to take the view that the claim for damages was also closely liked to the claim for annulment, particularly as it is not for the European Union judicature, where a claim for damages is presented together with a claim for annulment, to seek and identify, from amongst the various pleas put forward in support of the action for annulment, that or those on which the appellant intends the claim for damages to be based (order of 11 January 2012 in Case T-301/11 Ben Ali v Council, not published in the ECR, paragraph 72).
51 In the light of the case-law according to which claims for damages submitted together with inadmissible claims for annulment are themselves inadmissible where they are closely linked to those claims for annulment (Case T-50/92 Fiorani v Parliament [1993] ECR II-555, paragraph 46, and order in Case T-241/03 Marcuccio v Commission [2006] ECR-SC I-A-2-111 and II-A-2-517, paragraph 52), the Civil Service Tribunal could, without committing an error of law and without breaching its obligation to state reasons, confine itself to declaring that the claim for damages was inadmissible on the same basis as the claim for annulment was.
52 As regards, more particularly, the Parliament’s alleged maladministration in failing to inform the appellant of the implications of the new Staff Regulations for his classification in grade in the event of recruitment before or after 1 May 2004, it is true that the appellant also relied on that maladministration to claim that if he had had the information he would have refused to be taken on as a member of the temporary staff in October 2002 and he would never have given up the better paid job he had as a highly respected lawyer in a reputable law firm or, at the very least, he would have gone back there immediately on expiry of his first contract as a member of the temporary staff in June 2003. However, as the appellant failed to furnish any details of the financial losses caused by his abandonment of his job as a lawyer, the Civil Service Tribunal cannot be criticised for not taking that passage in the application to constitute a serious and separate claim for damages which warranted rejection on separate grounds.
53 Finally, for the sake of completeness, even if the claim for damages is not closely linked to the claim for annulment but can be interpreted as seeking independently – that is to say regardless of whether the contested decision is lawful or unlawful – the award of reparation in kind by placing the appellant back in the position (classification in grade A 7) he would have been in if there had not been the alleged delays in the procedure in Competition PE/96/A and if he had been correctly informed, the error made by the Civil Service Tribunal, in disregarding the independent nature of the claims for damages, would not be such as to invalidate its view, in paragraph 32 of the judgment under appeal, that those claims for damages are inadmissible. That view appears founded on other legal grounds (see, to that effect, Case C-361/01 P Kik v OHIM [2003] ECR I-8283, paragraph 101, and Case C-93/02 P Biret International v Council [2003] ECR I-10497, paragraph 60).
54 In that connection, it must be borne in mind that, according to settled case-law, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-contentious procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time-limits a complaint directed against the act in question. In the second case, however, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request. Where there is a direct link between an action for annulment and an action for damages, the action for damages is admissible as being ancillary to the action for annulment, without necessarily having to be preceded by a request to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of the request. However, where the damage alleged does not stem from an act whose annulment is sought, but from several wrongful acts or omissions alleged against the administration, it is imperative that the pre-litigation procedure should be initiated by a request that the appointing authority compensate for that damage (Case T-15/96 Liao v Council [1997] ECR-SC I-A-329 and II-897, paragraphs 57 and 58; Case T-378/00 Morello v Commission [2002] ECR-SC I-A-311 and II-1497, paragraph 102; and Case T-25/03 de Stefano v Commission [2005] ECR-SC I-A-125 and II-573, paragraph 78).
55 In the present case, as the alleged delays in the procedure for Competition PE/96/A and the alleged lack of information constitute maladministration which is not of the nature of a decision, the appellant should have followed the two-stage pre-litigation procedure described in the previous paragraph. However, there is nothing in the documents before the court at first instance to indicate that, before bringing the matter before the Civil Service Tribunal, the appellant submitted to the Parliament a request seeking reparation for the damage caused by that maladministration, that such a request was rejected and that that rejection was contested in a complaint. It follows that the claim for damages must, in any event, be rejected as inadmissible for failure to follow the pre-litigation procedure provided for by the provisions of the Staff Regulations.
56 Consequently, the third plea on appeal must be rejected as clearly unfounded.
57 It follows from all of the foregoing that the appeal must be dismissed in its entirety.
Costs
58 Pursuant to the first paragraph of Article 148 of the Rules of Procedure, where the appeal is unfounded, the General Court is to make a decision as to costs.
59 Under the first subparagraph of Article 87(2) of the same Rules, which apply to the procedure on appeal pursuant to Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
60 Since the appellant has been unsuccessful and the Parliament has applied for costs, the appellant must be ordered to bear his own costs and to pay those incurred by the Parliament in the present proceedings.
61 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Accordingly, the Council must bear its own costs.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby orders:
1. The appeal is dismissed.
2. Mr Harald Mische shall bear his own costs and those incurred by the European Parliament in the present proceedings.
3. The Council of the European Union shall bear its own costs.
Luxembourg, 4 September 2012.
E. Coulon
M. Jaeger
Registrar
President
* Language of the case: English
Full & Egal Universal Law Academy